Fair Use and Google: Ten Years After

(Ten Years After, I’d Love to Change the World)

Digesting the fair use reading in The Authors Guild v. Google in the Second Circuit, I went back to some things that I wrote when the case was filed, ten years ago, in 2005. What did I get right, what did I get wrong, and where and how is the jury (proverbially) still out?

From Google Sued; Books Disappearing (at The Conglomerate):

Will Google Print [as Google Book Search was then known] kill the book?

Books are really, really important things culturally, particularly in Western culture. Have been for hundreds of years. Almost everyone loves books and depends on books. And books are absolutely central to modern copyright law, both conceptually and doctrinally. (They’re even more important than authors, in my view. But I’ll take on one controversial topic at a time.) Books are fixed, limited containers of creativity. Books have beginnings, middles, and ends. Without books, we wouldn’t have “works,” and without “works” we wouldn’t know how to process questions of incentives and questions of access. We wouldn’t know where to put the author’s “moral right,” if there is one; we wouldn’t know what to refer to when we make “fair use” of a work. We wouldn’t know what to distribute, and distribution of creativity is the ultimate goal of the whole system.

If you expose the creativity without framing it in a book — and this is what Google proposes to do — all you have is data. Data that you can mix and remix and reuse and share in bits (bytes) and pieces and aggregates of new scale and scope. Data that is everywhere and nowhere, all at once.

When this happens — and Google may not do it, but I suspect that in the long run, it will happen — we’ll need to rethink not only the premises of copyright law, but we’ll also need to rethink some of our arguments about where culture comes from, where it goes, and what we do with it. This is the sense in which Google Print may be killing the book. And if the book dies, copyright as we know it ultimately dies too. (Note, by the way, how this question tracks what has been happening for the last few years in the music business, and particularly how it tracks the evolution of the concept of the copyrighted “work” in the context of sampling litigation. When copyright protects individual chords, then copyright really is protecting just data.) I confess that I have mixed feelings about this, and I haven’t come to a conclusion about where my sympathies lie. Right now I’m looking forward to, or at least hoping for, a good fight.

But there’s more. In Google Print II (here at madisonian.net), I characterized the case as “bet the Internet” litigation. GBS turns books into data (one might say, as Judge Leval did, that GBS “transforms” them); data means search; search means the Internet. Not to get all reductive and everything, but that, it still seems to me, just about sums it up. I was right (this case is all about how the concept of the book interacts with the concept of the Internet), I was wrong (I was somewhat skeptical of the fair use argument), and we still don’t know where, exactly, the roulette wheel will stop. Google has made an enormous bet. I wrote once that all of Internet law can be summed up in the stories represented in the movie Casablanca. That idea, too, seems to have legs. Google has put its chips on twenty-two. Les jeux sont fait. Is Judge Leval a contemporary Rick Blaine? Or will copyright find its Victor Laszlo at the Supreme Court?

Working Fair Use

Are there tensions in recent fair use cases regarding methods? Fair use analysis has traditionally and conventionally posed a set of very “work-specific,” nuanced questions. For at least 15 years or so, since the rise of the original Napster technology (and really, at least since “librarying” was at issue in the original Betamax litigation), social practices and information technologies have raised the question of large-scale alleged fair uses. Yet copyright law sticks somewhat stubbornly to the “work-specific” legal framework. Are cracks appearing in that facade? Have recent cases opened that conversation in earnest? Continue reading Working Fair Use

Abbott and Costello, Copyright, and Me

This report — “Abbott & Costello Heirs Sue Over Lifting of ‘Who’s on First’ Routine” by @HandtoGodBway — reminded me that many years ago, I borrowed the spirit of “Who’s on First?” for a short and silly piece about copyright law. The piece got published but never made its way to the unrarefied air of the Internet. I’ve corrected that omission.

Download “What’s My Copy Right?,” 48 J. Copyright Soc’y (U.S.A.) 787 (2001), for free, via SSRN.

I’m aware that the paper somehow confuses the performers’ names, which were, properly Bud Abbott and Lou Costello.

Reports of the contemporary copyright claim appear, among other places, at




Changing Rhetorics of Copyright

People with a taste for the finer details of copyright law pay attention to the language in notices of claimed copyright, the rhetoric of claims to enforce software licenses, and related things.

Book publishers, for example, routinely insert copyright notices that forbid any and all reproduction of any and all material, sometimes explicitly allowing for selections used in a review, but sometimes not. More than a decade ago, Alchemy Mindworks was celebrated (that link goes to an article by Lydia Pallas Loren) for threatening to unleash “a leather-winged demon of the night” on unauthorized users of its software.  (I just checked.  That demonic language is still there!) Creative Commons notices, of course, turn this idea on its head. In the spirit of Abbie Hoffman, perhaps (and with apologies to Rebecca Tushnet), a CC work says: Copy me, please (with conditions)!

The interesting stuff, to me, lies in the rhetorical space between “copy and you’re a thief” notices and “copy and you’re a hero” notices. This post is prompted by one of these, from William Gibson’s new novel, The Peripheral (Penguin 2014):

“Penguin supports copyright. Copyright fuels creativity, encourages diverse voices, promotes free speech, and creates a vibrant culture. Thank you for buying an authorized edition of this book and for complying with copyright laws by not reproducing, scanning, or distributing any part of it in any form without permission. You are supporting writers and allowing Penguin to continue to publish books for every reader.”

There are all sorts of rhetorical moves there, technical problems, and legal ambiguities. Have some fun, for example, by substituting the phrase “the public domain” for “copyright” every time it appears in that paragraph. Copy a bit of the text, as I just did, and persuade yourself that it constitutes fair use, as I just did.

“Penguin supports copyright.” I never imagined that it does not, but copyright ordinarily isn’t something that one supports, just as ordinarily, copyright isn’t something that one believes in – or does not.  Copyright is a fact of the world.  “Do you believe in infant baptism?,” Mark Twain supposedly was asked. And he is supposed to have replied, “Believe in it? I’ve seen it done!”

Koons and Christo

Jeff Koons is at it again. He’s been sued for copyright infringement, this time by an artist who created an advertisement for a French clothing brand, Naf Naf.

You can see images of the original advertisement and of Koons’s adaptation at the following links:

Koons has been sued often enough that it’s reasonable to conclude that he is not merely playing with impressions of art (well or poorly? – opinions are divided).  Koons, I think, is using the copyright system itself as a canvas.  Back in law school, the great Robert Ellickson pointed me to a reflection by Christo (“Running Fence,” the Central Park “Gates,” etc.) that has been stored in the back of my mind for nearly 30 years:

Christo endured years of zoning battles with local authorities before erecting his “Running Fence” in Sonoma County, California: “‘It’s hard to explain that the work is not only the fabric, steel poles, or Fence. Everybody here [at the zoning hearing] is part of my work. Even those who don’t want to be are part of my work….”’ (quotation from Milner S. Ball, Good Old American Permits: Madisonian Federalism on the Territorial Sea and Continental Shelf, 12 ENVTL. L. 623, 656 (1982)).

Does Koons think that he is … Christo?