November 18, 2005 · Lessig
It was a “lively” event, or so I was told. I’m not a good judge of what it was. But I awoke this morning more resolved about the wrongness in the rhetoric around this issue. And of course, mornings after then are always mornings of regret.
The AAP and AG say they believe in “fair use.” If that’s so, then they must believe that someone has a right to make money using fairly the work of others. If that’s so, then they must believe that someone has the right to fairly use the work of others without permission. And so if that’s so, then if Google Book Search is fair use. not only is Google doing nothing wrong. Google is, from the perspective of the authors and publishers, doing something extra nice — giving them the permission to opt out of the index.
So the only question is whether Google’s use is “fair.” Now anyone who knows anything about the law knows that’s a hard question. Reasonable people may differ about it. But the frustration I consistently feel with the position of the AAP and AG is that the reasons they offer for why Google’s use is not fair would mean that practically no use would be fair.
E.g., Nick Taylor’s complaint was that Google was profiting on the work of others. But that’s true with every commercial use that’s also a fair use. If Taylor’s theory were correct, you couldn’t make money from a book that fairly quoted another author. Or a film that fairly included clips from another film. That would be a radical shrinkage of “fair use.”
Or, e.g., Allan Adler complained that Google hadn’t asked permission. But again, you don’t need to ask permission to use a work fairly. If Adler’s theory were correct, that too would mean a radical shrinkage of “fair use.”
Or finally, in the part of the session closest to the actual law of fair use, Adler said the reasons this use was not fair was that there was a “potential” market that Google was just taking. What was that market? The market in licensing the use of building a fully searchable index of books. But you can always hypothesize a “potential” market. And if that’s all that it took, again, there would be a radical shrinkage of “fair use.”
Adler’s last point made me recognize something I hadn’t seen before. Both sides of this debate have their own “potential” defense. They say this is not “fair use” because they can imagine a “potential” market within which this use could be licensed — even though there’s no such market just now, and neither had anyone thought of such a market even two years ago. (And don’t start blathering about the market to search inside a book — that’s a very different functionality from what Google is offering. Google’s is an index into the book; it doesn’t give you a book to read.)
We have our own favorite “potential” defense — a technology “capable” of substantial non-infringing uses should be free of secondary liability. So we said Grokster was a such a technology, even if less than 10% of the uses were actually non-infringing. They said that’s not enough of a potential.
Both sides might learn something from the criticism of the other. If fair use is lost just because you can imagine a market, then there is no fair, or free use, in a digital age. Every use triggers copyright law, because every use is a copy. And there’s no limit to the ability to imagine a market, so then every use would have to be with permission. That’s the same point made against Sony — if all it takes is imagining a non-infringing use, then there could be no such thing as secondary liability.
Our side, I take it, is happy with the implication that there is no secondary liability. Their side, I take it, is happy with the implication that there is very little fair use.
Both sides suggest to me that we need to rethink fundamentally how this system of speech regulation is regulating.