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Betting the Farm on Users’ Rights

Siva is concerned that if Google fights too aggressively in the new Google Print litigation, a loss could jeopardize the fabric of the copyright universe.

We agree on the stakes; we disagree on the tactics. How do we protect users’ rights and the public domain?

The problem is that the public domain cannot sue to protect itself. (Note the echo of environmental law.) Individual users can sue to protect their interests in the public domain, but we’ve seen first-hand the limits of that strategy. Regardless of your view of the merits of Eldred v. Ashcroft, it was pretty difficult for Eldred’s legal team to get more than 2 members of the Supreme Court to see why any of this mattered.

The next best strategy is to enable proxies to stand for the public domain. Proxies are imperfect in lots of ways, but one thing they have — especially if they happen to be large corporate entities — is a business model that depends on access to information. If a fight is needed, they may also have the money to fund a fight. I think of Creative Commons, in part, as a kind of proxy in this sense; it’s hardly well-funded or itching for a fight, but its very existence advocates affirmatively and importantly for a piece of the public domain. In some file sharing contexts, ISPs, and Verizon in particular, have been a proxies in public domain fights. In this case, I think that Google is a public domain proxy — even in light of its obvious commercial interest.

That said, as I posted earlier, I’m not convinced that Google is in the right. But if we recognize Google as a proxy, then I continue to believe that sometimes you fight the fights that need fighting, not just the fights you can win. (That’s a paraphrase of a movie quote; you can look it up.) You can take that as a romantic argument on behalf of the public interest. If the words “public domain” become a ghostly “Boo,” so that we all just roll over when we hear them, then the public domain doesn’t mean much. (Suppose Sony had settled the Betamax litigation, for example.) Or you can take it as a pragmatic argument on behalf of a company that should put its money where its mouth is. Companies do that from time to time, and it’s bloody and expensive, and they run the risk that they’ll lose. But if they win, then they never have to fight that battle again.

Either way, I haven’t been an academic so long that I’ve lost the litigator’s sense that sometimes, a case deserves to be litigated and maybe even tried. I think that this is one.

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