Comments on: Google Sued http://www.lessig.org/2005/09/google-sued/ Blog, news, books Tue, 10 Oct 2017 06:01:00 +0000 hourly 1 http://wordpress.org/?v=3.8.2 By: Michael A. Banks http://www.lessig.org/2005/09/google-sued/#comment-18407 Sat, 22 Nov 2008 10:10:00 +0000 http://lessig.org/blog/2005/09/google_sued.html#comment-18407 I am compelled to echo Seth’s comment about the technology company not always being “right.”

Just finished watching Lessig on Charlie Rose (yeah, I’m in here a long time after the fact). Some things he said about putting his work on the Web for free (and urging Charlie Rose to allow that with his shows) were pretty self-serving, and blathered from a position in which he has no vested interest in whether his work is put out free or protected by copyright and sold.

That position is often called “moneyed.” He’s made his pile. And Charlie Rose gets paid before he even makes the programs. Lessig’s slant on copyright and making creative, scholarly, and research work avilable on the Web–particularly without the author’s permission–would be 180 degrees out of phase with his current views, were he to find himself depending entirely on the earnings of his work.

I imagine he wouldl be monumentally and sincerely pissed off if he was flat broke and watching the incentive for people to buy his books being eroded by people who want to “share” them because it’s a cool idea. And he’d likely be producing no written work, because he’d be burning the time he might put into writing working his ass off for someone else.
–MB

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By: Vipul Nanda http://www.lessig.org/2005/09/google-sued/#comment-18406 Thu, 17 Jul 2008 03:01:02 +0000 http://lessig.org/blog/2005/09/google_sued.html#comment-18406 Barry,

I think your entire set of arguments taking away from the ‘fair use’ that is involved in the Google Print Project suffers from an understanding of the doctrine that is based on a preconceived conclusion on your part that this project is in violation of copyright laws.

For example, a fair reading of the very site you linked to on the Four Factor test would demonstrate a more balanced view of the entire case.

1. On the question of the ‘character’ of the use, while it is commercial, there is also the ‘otherwise transformative’ aspect of this project – clearly, Google is changing the nature of the copyrighted work, and transforming a lot in the course of this project.

2. On the question of the nature of the work, it is clear on the website that the Google Book Project and the works involved don’t fall into the category of ‘imaginative’, but are published works, which fall on the left hand side of that column, thus weighing in Google’s favour.

3. On the question of how much of it will be used, your ‘literal interpretation’ notwithstanding, a very small portion will be used. A snippet, irrespective of how much will be used by Google overall. Hence, again, left side of that column.

4.On the question of its effect, it will clearly not affect the market adversely – enough and more surveys are showing a clear indication of the good Google is doing.

All in all, Google has a strong Fair Use case. You, on the other hand, don’t. I’d also suggest reading a resource carefully before offering it as an argument.

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By: Jack http://www.lessig.org/2005/09/google-sued/#comment-18405 Thu, 27 Dec 2007 12:21:14 +0000 http://lessig.org/blog/2005/09/google_sued.html#comment-18405 If you can get the books online why pay for them at the book store? I don’t thinks this is a good idea for google. They are going to put the book stores out of business.

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By: loan http://www.lessig.org/2005/09/google-sued/#comment-18404 Wed, 22 Nov 2006 15:52:56 +0000 http://lessig.org/blog/2005/09/google_sued.html#comment-18404 I agree with Justice Douglas’s point of view. We must remeber about it while producing new information for internet users and take care of google’s reputation.

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By: Dan Moody http://www.lessig.org/2005/09/google-sued/#comment-18403 Fri, 06 Oct 2006 07:38:48 +0000 http://lessig.org/blog/2005/09/google_sued.html#comment-18403 This article is really interesting, but it causes controversial opinions. Google is my favourite Search Engine, I always use it. So I think all they do, they do it right.
I think it will be interesting and useful for its users and visitors.
Still I consider that if they scan books, they should respect author’s and publisher’s rights at first, probably they should also consult with them and only then the book’s scanning and indexing is posiible. Otherwise it will be doubly.
I think they should not allow to download books, because noone will buy them from the bookstores.
But I liked it and wish Google good luck!

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By: Barry http://www.lessig.org/2005/09/google-sued/#comment-18402 Thu, 29 Sep 2005 01:36:41 +0000 http://lessig.org/blog/2005/09/google_sued.html#comment-18402 You give up too soon. How about explaining it to me? I promise, I’ll try harder!

I’m sorry for being a bore. I know the law can be boring, and that’s what I continue to get back to. Would you like me to use your style of non-legal diatribe, or should I just start with short personal attacks? I know that you combine the two, but I need to work up to that.

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By: poptones http://www.lessig.org/2005/09/google-sued/#comment-18401 Thu, 29 Sep 2005 01:08:45 +0000 http://lessig.org/blog/2005/09/google_sued.html#comment-18401 You’re a bore (you can’t even read the stuff YOU quote) and I am through with you.

Come back when you have learned to read.

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By: Barry http://www.lessig.org/2005/09/google-sued/#comment-18400 Wed, 28 Sep 2005 19:52:58 +0000 http://lessig.org/blog/2005/09/google_sued.html#comment-18400 Is the concept of using something for commercial purposes being disallowed unusual to you? It’s not uncommon, but interpret the law as you want. We’re talking about fair use factor number 3 below. Google wants to use people’s entire copyrighted works. They wouldn’t publish any work all at once (though we just heard that they’re giving away works as payment), but I believe their use of the entire works would be held against them. But if not, fair use law is against them anyway.

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

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By: poptones http://www.lessig.org/2005/09/google-sued/#comment-18399 Wed, 28 Sep 2005 18:58:35 +0000 http://lessig.org/blog/2005/09/google_sued.html#comment-18399 …and commercial use of someone else’s work is held against you according to one of them.

You really have to get over this “commercial use” nonsense. Commercial use or not has almost nothing at all to do with it. commercial use (opr not) didn’t matter to the girl scouts. It didn’t matter to drink or die. and it doesn’t matter here. Whether or not commerce is involved (especially since the DMCA) is essentially meaningless in any discussions of copyright infringement.

Also, use of the entire book is held against you—if you take the fair use factors literally—whether or not you publish the entire book.

You really need to work on those comprehension issues. I bet you didn’t even give the SRA your email address, did you?

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By: Barry http://www.lessig.org/2005/09/google-sued/#comment-18398 Wed, 28 Sep 2005 18:25:21 +0000 http://lessig.org/blog/2005/09/google_sued.html#comment-18398 Someone wrote:

What if I set up a 900 number where you call for a snippet of a book and in return I read back a relevant passage? No one is getting the entire book – but you are getting a citation which you would not have without my service.

As has been mentioned more than once, there are four fair use factors (I wish this was in a full browser window so I can search for stuff more easily) and commercial use of someone else’s work is held against you according to one of them. Also, use of the entire book is held against you–if you take the fair use factors literally–whether or not you publish the entire book.

In the particular scenario you mention, in some cases, you can call a public library that has a telephone reference service and the book and they’ll read you the citation for no charge. Otherwise search the internet, go to a bookstore, etc.

I don’t believe a system should be created in which copyright holders have to search under every rock to see whether someone is using their (arguably entire) work for profit in a way that devalues it for the copyright owner. That’s what Google’s opt-out system creates. Luckily, I don’t think it’s legal and it probably never will be.

Lessig wrote:

Given the total mess of copyright records, there is absolutely no way to enable this sort of access to our past while asking permission of authors up front. Or at least, even if Google could afford that cost, no one else could.

Nobody needs that sort of access, but why can’t Google at least take the time time to email the copyright holders printed in the books, just in case they’re able to be contacted and are able to reply? If any emails are ignored, Google could assume the material is orphaned. That would be illegal too, but it’s closer to fair and wouldn’t be impossibly expensive per book. What would it cost Google to do that per book, considering they can do it for hundreds of books per single email to a publisher? A penny? Oh, then Google might need to read a contract. Still, one contract per hundreds of books. Nothing compared to what Google would earn from Google Print.

If it’s true that there’s “no way to enable this sort of access to our past while asking permission of authors up front,” it would probably be because Google wouldn’t get permission from the copyright holders of even the non-orphaned books, not because Google can’t afford it or because they’d need to pass impossibly high costs on to the customer after getting the permission.

Will someone fix blockquote already! What blog software is this?

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By: Doug Lay http://www.lessig.org/2005/09/google-sued/#comment-18397 Wed, 28 Sep 2005 15:53:35 +0000 http://lessig.org/blog/2005/09/google_sued.html#comment-18397 Tony:

I hear your position, I just don’t agree with it. If opt-out is used as the standard, the project will simply not happen, at least not for the huge amount of valuable information stored in libraries for which the digital copyright owndership cannot readily be determined. This constitutes a far greater loss to the culture than the hypothetical loss of scholarship deriving from revenue losses that you talk about.

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By: poptones http://www.lessig.org/2005/09/google-sued/#comment-18396 Wed, 28 Sep 2005 15:44:09 +0000 http://lessig.org/blog/2005/09/google_sued.html#comment-18396 If you want to utilize someone else’s work, you either pay for it or ask permission to use it.

Since when does someone have to ask permission before quoting a work? Such use is written right into law – that “fair use” bit. Google is not prpvoding the works in whole, they are providing relevant quotations. They do not need more than a single copy of a book in order to do this. What if I set up a 900 number where you call for a snippet of a book and in return I read back a relevant passage? No one is getting the entire book – but you are getting a citation which you would not have without my service. I do not need ten thousand “licenses” because I need only one book to do this. The work is not being redistributed and your “rights” remain intact.

How is this any different? That it needs to be made machine readable? Your complaints seem little different to me than those made by publishers against book scanners (which also create “a copy” in machine readable form) that allowed blind people to enjoy cheap paperback books without paying the ridiculously high prices for braille editions. I doubt you’re going to get much sympathy on that – certainly none from me.

I just had a point I was going to make around the penniless death of Blues legend Robert Johnson. But for whatever reason we all struggle with this sort of thing from time to time, I couldn’t recall the name Johnson. So I dash into my googlebox the words “blues robert” and hit return and I get a page of citations about “Blues legend Robert Johnson.” In the time it took me to say “blues robert” I got past that mental block.

Who should be paid for that? Robert Johnson? His archivists? The publishers who wrote about him? None of them were there to answer my question, and to do this at a conventional library would require poring over card catalogs and all sorts of nonsense – by the time I even got to the library my point would probably be forgotten.

What if I have a quote from a passage in one of your works but I need to know the author? Are you going to provide this service? the service I require is little more than a phone book – I do not need the entire book in question, nor even a quote from it (I already have that part). All I need to know is who wrote it. Google could answer that question in one second – but it requires they know of the work. What right do you have to demand payment for such use if you do not provide the service?

Putting these works into an indexable database is no more an infringement of your exclusive right to copy and redistribute than a phone book. Not only should anyoen willing to take on such a task be encouraged in it, they should not even acknowledge those “opt out” notices. The potential benefits to society are simply too great to do otherwise.

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By: Tony Sanfilippo http://www.lessig.org/2005/09/google-sued/#comment-18395 Wed, 28 Sep 2005 12:55:07 +0000 http://lessig.org/blog/2005/09/google_sued.html#comment-18395 Poptones:
I’m not at all against the creation of the database. I am concerned with how Google or your theoretical army of volunteers might compile that database. If you want to utilize someone else’s work, you either pay for it or ask permission to use it. You do not take it and then use it as the capitol to create that database. No matter how useful that database might be.

Doug:
Our press was one of the early participants in the Google Print for Publishers program. All of our active books where we control the copyright are included in that program. We are already benefiting from the exposure and increased revenues that that program offers. We have licensed Google to use that content. My concern is our books that have gone out of print but where we still control the copyright. We are currently trying to digitize those books and bring them back into print, both as digital books and as print on demand paperbacks. What Google is doing undermines that. It damages the market for that content.

Opting out seems nonsensical to me. Since when do we request the potential victim of a crime to fill out a form to opt out of that crime. The compilation of that list in and of itself would take a lot of resources. We’ve been publishing for 50 years. Johns Hopkins University Press has been publishing for over 125 years. The amount of scholarship involved is enormous. Why should it be the responsibility of the university press community to do that work? As a not for profit, we simply can’t afford it. Those resources should be spent creating new scholarly content.

When we use someone else’s work, we ask for permission and sometimes pay for it. Google should do the same. The onus is Google’s, not ours.

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By: WJM http://www.lessig.org/2005/09/google-sued/#comment-18394 Wed, 28 Sep 2005 12:13:25 +0000 http://lessig.org/blog/2005/09/google_sued.html#comment-18394 Google is making at least two digital copies of our books using one to index and giving one to the library.

If this is so problematic for you, why haven’t you told them not to?

https://print.google.com/publisher/exclusion-signup?gsessionid=WQ02qhgRVP4

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By: Doug Lay http://www.lessig.org/2005/09/google-sued/#comment-18393 Wed, 28 Sep 2005 09:19:57 +0000 http://lessig.org/blog/2005/09/google_sued.html#comment-18393 Tony:

If you truly think the lost revenue from digital sales to three libraries will outweigh the increased revenue from exposure in the Google Print index, why not just take advantage of the opt-out provision? That way you control access to your organization’s own works, but access to a century’s worth of orphan works is not blocked.

As for WorldCat, it isn’t a full-text index. People can argue eternally about the merits of controlled-vocabulary vs. full-text, but for a certain class of searches – those where recall is more important than precision – full-text is an undeniably better option. Certainly it is beneficial to knowledge to have full-text available as an alternative.

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By: Barry http://www.lessig.org/2005/09/google-sued/#comment-18392 Wed, 28 Sep 2005 03:40:41 +0000 http://lessig.org/blog/2005/09/google_sued.html#comment-18392 I was searching for the answer to whether Lessig is a Libertarian, and I’m leaning against him being one. The following is from Code V. 1. I’d ordinarily think it’s an illegal copy, but given Lessig’s views on intellectual property, I’m not so certain. Just to be safe, I won’t link to it, but here’s an excerpt:

A certain American rhetoric supported much in this reaction. A rhetoric of libertarianism. Just let the market reign and keep the government out of the way, and freedom and prosperity would inevitably grow. Things would take care of themselves. There was no need, and could be no place, for extensive regulation by the state.

But things didn’t take care of themselves. Markets didn’t flourish. Governments were crippled, and crippled governments are no elixir of freedom. Power didn’t disappear–it simply shifted from the state to mafiosi, themselves often created by the state. The need for traditional state functions–police, courts, schools, health care–didn’t magically go away. Private interests didn’t emerge to fill the need. Instead, needs were unmet. Security evaporated. A modern if plodding anarchy replaced the bland communism of the previous three generations: neon lights flashed advertisements for Nike; pensioners were swindled out of their life savings by fraudulent stock deals; bankers were murdered in broad daylight on Moscow streets. One system of control had been replaced by another, but neither system was what Western libertarians would call freedom.

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By: poptones http://www.lessig.org/2005/09/google-sued/#comment-18391 Wed, 28 Sep 2005 01:21:10 +0000 http://lessig.org/blog/2005/09/google_sued.html#comment-18391 Tony, I’m not sure I completely understand the “marketing model” of youyr university press, but it sounds to me like your argument against the way Google is going about this doesn’t really have anything at all to do with the central goal of creating an indexed database of all written works. Your problem seems to be with the details of the process of creating that database, not of the database itself.

Consider: a project distributed amongst thousands, where each individual acting as volunteer scanned their favorite works and submitted them to an index database that lived “in the cloud” – free of regulation or ownership by anyone, but accessible only in a fashion that preserves the rights of the authors against unfettered wholesale copying of protected works – IOW a public record of all written knowledge. Would you object to that? More importantly, how would you prevent it?

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By: Tony Sanfilippo http://www.lessig.org/2005/09/google-sued/#comment-18390 Wed, 28 Sep 2005 00:19:53 +0000 http://lessig.org/blog/2005/09/google_sued.html#comment-18390 I work at a university press. Four of the five libraries in the program are university libraries. Much if not all of what we have published in our 50 year history is in those libraries Google is proposing to scan. In fact, that’s probably true of almost every American university press.

Here’s why I object to that.

Google is making at least two digital copies of our books using one to index and giving one to the library. Those copies are payment by Google to those libraries for access to the books. Using an unauthorized copy as a payment is an infringement.

University presses are concerned about the unrestricted and uncompensated use of our materials by university libraries in e-course reserves. Those copies Google is giving the libraries will have the potential to exacerbate that problem exponentially.

As a university press, we’re not in the business of suing professors or libraries, and we don’t see that as useful. We do want to try and educate both professors and librarians to the fact that they too have a stake in this model. The less we publish, the less libraries have to offer, the fewer faculty members get tenure.

Without university presses, a lot of scholarship wouldn’t get vetted, edited and designed. Do we want to chuck the whole commercial model for the production of scholarship? Perhaps we should. But as long as there is a perceived value in measuring scholarship in the marketplace, and until university administrators decide we should chuck it, we’re dependent on that model and we must abide by the rules that environment imposes. Our non-profit university press, like most, has a clear mandate from our administration–be sustainable. Make less money, then publish fewer books.

My objection is that we will loose the opportunity to sell those digital files of our content ourselves. Each of the libraries in question probably has 70 – 90% of what we’ve published over the past 50 years. The files of our content that Google is giving each library are worth tens of thousands of dollars, if we had been allowed to sell them those files. The libraries involved have all bought or subscribed to our digital content in the past. Now they won’t need to anymore. That loss of income means many new books won’t get published. That means scholarship and the advancement of knowledge suffers much more than any advantage gained by the indices Google creates. WorldCat is already a pretty good index of most university library catalogs. Google does not need to duplicate that index at the expense of scholarship.

I don’t buy the fair use argument. There are four factors in determining fair use. Commercial use is the first factor for a reason. Like the first amendment. Not only will Google be making money by selling ads next to the content, they are using copies of our content as payment for access to our books. I can’t understand how anyone thinks that qualifies as fair. And I hope people can understand why that might actually hurt the advancement of knowledge, not improve it.

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By: Barry http://www.lessig.org/2005/09/google-sued/#comment-18389 Tue, 27 Sep 2005 23:41:42 +0000 http://lessig.org/blog/2005/09/google_sued.html#comment-18389 I read all the sentences with “libertarian” in that, but it didn’t answer my question. I read yesterday that Lessig was one or had some libertarian beliefs until some event in his life, but I wasn’t clear on whether he’s one now.

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By: Seth Finkelstein http://www.lessig.org/2005/09/google-sued/#comment-18388 Tue, 27 Sep 2005 23:32:54 +0000 http://lessig.org/blog/2005/09/google_sued.html#comment-18388 Lessig is not a Libertarian.

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By: Barry http://www.lessig.org/2005/09/google-sued/#comment-18387 Tue, 27 Sep 2005 22:40:24 +0000 http://lessig.org/blog/2005/09/google_sued.html#comment-18387 Saying “fair use” in this context implies legal fair use. In text about fair use regulations, you’ll see the term used in a similar way to how Lessig used it–not as a noun. Then there’s what he said about the Justice’s decision, making it sound like it was based on the Justice’s idea of common sense, leaving out the Justice’s statement about what congress has said. Either Lessig was saying the law is on his side or he was being extremely misleading on purpose, trying to get people to believe that the law is on his side.

I’m still curious, is Lessig a libertarian? Is he afraid to admit it because he thinks he’ll have less of a following or he won’t be able to attract as many quality guest bloggers? Are you going to make me look at his book to find out.

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By: poptones http://www.lessig.org/2005/09/google-sued/#comment-18386 Tue, 27 Sep 2005 21:15:29 +0000 http://lessig.org/blog/2005/09/google_sued.html#comment-18386 He mentioned the name of a legal doctrine, saying it protects Google

Really? I just read it again and I see no named doctrine. Perhaps you could point out the relevant passage for me. If you are talking about that “fair use” part, then I see nowhere that is used as a proper noun. “Fair” is used as an adjective which describes google’s method of use. But more importantly, the entire post is obviously a statement of opinion. You can no more “debunk” opinion than you can debunk God.

Having a searchable, automated database of all written works would have immense value to us all. The real trajedy I see in this is that our federally funded Library of Congress has not taken upon itself this project. It inarguably serves (in unprecedented fashion) the foremost reason for having Copyright in the first place: to promote the progress of science and of the useful arts.

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By: Barry http://www.lessig.org/2005/09/google-sued/#comment-18385 Tue, 27 Sep 2005 19:52:28 +0000 http://lessig.org/blog/2005/09/google_sued.html#comment-18385 He mentioned the name of a legal doctrine, saying it protects Google. I proved that incorrect, unless I missed something. Maybe your argument pointed out holes in my legal argument, but I didn’t notice. I think you’re referring to my post here. Your reply follows it.

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By: poptones http://www.lessig.org/2005/09/google-sued/#comment-18384 Tue, 27 Sep 2005 19:14:12 +0000 http://lessig.org/blog/2005/09/google_sued.html#comment-18384 How do you explain his comment that “Google’s use is fair use. It would be in any case…”? He’s referring to the law there, as though it was on his side. Well, I quoted the law and analyzed it step by step, and Lessig is wrong.

he was making an argument not asserting a fact – a fact you do not seem to grasp.

And you didn’t “disprove” him at all. In fact, my own post after yours pointed out the many holes in your very weak argument.

Perhaps this would help you with that comprehension problem….

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By: Barry http://www.lessig.org/2005/09/google-sued/#comment-18383 Tue, 27 Sep 2005 17:15:39 +0000 http://lessig.org/blog/2005/09/google_sued.html#comment-18383 Poptones wrote “the entire point is they are bad laws and need to change. It appears this has gone completely over your head.”

Nope, that wasn’t Lessig’s entire point. I made it clear what part of Lessig’s post I was responding to in my past replies, and I don’t think I misinterpreted anything. How do you explain his comment that “Google’s use is fair use. It would be in any case…”? He’s referring to the law there, as though it was on his side. Well, I quoted the law and analyzed it step by step, and Lessig is wrong. I’m not sure why this is in the “bad code” section. The first point seems to be a complaint that “content owners turned to the courts to stop an extraordinary new technology,” and the second is about the “code” being against the content owners.

I’ll repeat this from a previous reply: “If Lessig wants the law to be changed, he should be honest about it instead of pretending that what he wants is already legal.”

I wonder if when Lessig says “Then, like now, the content owners ought to lose” he means that they should lose their case despite the law.

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