Comments on: Very good “fair use” opinion re Google’s cache http://www.lessig.org/2006/01/very-good-fair-use-opinion-re/ Blog, news, books Tue, 10 Oct 2017 06:01:00 +0000 hourly 1 http://wordpress.org/?v=3.8.2 By: saint-marc.pel-brest.net http://www.lessig.org/2006/01/very-good-fair-use-opinion-re/#comment-33686 Thu, 18 Apr 2013 19:08:11 +0000 http://lessig.org/blog/2006/01/very_good_fair_use_opinion_re.html#comment-33686 I think that is among the most vital info for me. And i’m happy reading your article. But should statement on few general issues, The web site taste is wonderful, the articles is really excellent : D. Excellent activity, cheers

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By: descargar ares http://www.lessig.org/2006/01/very-good-fair-use-opinion-re/#comment-28121 Wed, 13 Feb 2013 09:56:59 +0000 http://lessig.org/blog/2006/01/very_good_fair_use_opinion_re.html#comment-28121 Nice respond in return of this question with solid arguments and
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By: John S. http://www.lessig.org/2006/01/very-good-fair-use-opinion-re/#comment-17657 Fri, 03 Feb 2006 02:45:11 +0000 http://lessig.org/blog/2006/01/very_good_fair_use_opinion_re.html#comment-17657 Maybe asking if a robot has the same right is the wrong question – maybe it should be: if it’s not illegal for a person, why would it be illegal for a robot?

I think the question of what legal force, if any, is given to robots.txt needs answering first.

and ridiculous as this stuff seems, I don’t see how to avoid having to figure it out given the current copyright laws and cases like MAI Systems (RAM copies count).

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By: poptones http://www.lessig.org/2006/01/very-good-fair-use-opinion-re/#comment-17656 Fri, 03 Feb 2006 02:03:46 +0000 http://lessig.org/blog/2006/01/very_good_fair_use_opinion_re.html#comment-17656 The difficulty in that argument is whether a robot or spider has the same rights to cache without authorisation.

Ridiculous. If you post the material and you want bots to stay away you include robots.txt. To argue whether or not they have the “right” to duplicate the content is simply ridiculous – it’s inherent to the nature of digital communications. It’s like arguing whether or not the swimming pool is at fault for getting swimmers wet.

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By: poptones http://www.lessig.org/2006/01/very-good-fair-use-opinion-re/#comment-17655 Fri, 03 Feb 2006 01:51:44 +0000 http://lessig.org/blog/2006/01/very_good_fair_use_opinion_re.html#comment-17655 These people may seem like freaks to you but there is a very interesting question regarding the ownership of copyright material

Dude… it was a joke. Come on… aibos roaming the streets?

Sheesh.

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By: ACS http://www.lessig.org/2006/01/very-good-fair-use-opinion-re/#comment-17654 Fri, 03 Feb 2006 01:00:04 +0000 http://lessig.org/blog/2006/01/very_good_fair_use_opinion_re.html#comment-17654 John S and Peter

Apparently, Mr. Fields set up his site precisely to trap Google and collect statuatory damages. He knew about, and consciously chose not to, incorporate the robots.txt and metadata to prevent indexing and caching.

There may be a broader issue of implied licence here. The fact that Fields did know the Google robot would search and cache his site is probably evidence of such a licence. But would the situation be any different if a site was not geared in this respect.

It may be arguable that the mere act of communicating copyright material to the public across a technological medium would induce a court to consider that copying (or caching) is authorised as it is the consequence of viewing the site.

The difficulty in that argument is whether a robot or spider has the same rights to cache without authorisation. THis is all tied up in the definition of communication to the public pursuant to the Copyright legislation. IE – Does an exercise of the right to communicate copyright material to the public include a composite right to collect communicated material from the author by technological means??

Is the licence implied because the site owner communicates the material to the public or because it is a technological consequence of reading a site?

Please comment.

Poptones-

do we “discriminate” against robots just because of what they do?

Oh, I’ve seen YOUR kind before… you’re one of those weirdo cybernetics rights activists, huh? Like those freaks that broke into the Sony factory

These people may seem like freaks to you but there is a very interesting question regarding the ownership of copyright material produced by artificial intelligence systems brewing. One of the conclusions drawn by some lawyers is that AI produced material cannot belong to the owner of the AI because it is not his/her original creation. Therefore the material is treated as unowned or not copyright. In order to set this right some advocates argue that AI is an employee and therefore the property of the AI owner – perhaps robots and AI will be given limited human rights in order to protect the property that they create??

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By: John S. http://www.lessig.org/2006/01/very-good-fair-use-opinion-re/#comment-17653 Thu, 02 Feb 2006 18:34:01 +0000 http://lessig.org/blog/2006/01/very_good_fair_use_opinion_re.html#comment-17653 Umm… you mean like how I already can’t view Hustler.com, Penthouse.com, most web discussin boards, or most of the videos on itunes without first “becoming a member” or even paying for them?

That’s not what I mean. Those sites actually block you out; what I was getting at was if they merely requested that you not view thier sites, but left you technologically able to.

Again, I don’t see the “tyrany” there – we should have the right of free association. If there ever came to be a “people.txt” standard I would imagine it would be encumbent upon the tools used to verify themselves against it and “illegal” only for the user to directly circumvent it or for software makers to supply tools to the public that did so. It’s still a regulatory nightmare, and much easier I think for site operators to simply erect “members” pages… as we have now.

I didn’t suggest tyranny… I’m trying to work through ideas on how the law would work in the case that robots.txt is or is not given legal force. I’m not intending to make value judgments. It is a hard problem to balance personal rights with the inhernet openness of the web. I agree, freedom of association is important. It seems only that you are advocating that people have their wishes and rights respected with respect to how their works are used. That’s not unreasonable at all. That’s what copyright law provides, for the most part.

Suppose someone ran a website where there was no robots file or any other indication restricting use of any kind, and this person does not know anything about robots, metatags, or anything else relevant (UNLIKE Fields). Suppose this person sued you for viewing (and therefore copying) his site. Crazy right? What would your defense be? I (and probably most would) agree that you shouldn’t lose this case – but I think that given the way the court in this Google/Fields case interpreted implied license, it would be a stretch to use that as a defense.

Like Peter points out, this guy seemed like he was shooting for cash here, and admitted he knew the ways to control robot behavior and didn’t use them – and therefore lost on the implied license defense. The implication is that the implied license would only be granted where the site owner knew (or maybe should have known, unclear) of those mechanisms. So based on this, it looks like absent any robots.txt/metatgs, the court STILL needs more to find an implied license. Why would the law operate differently on robots and people in this example, especially if the site owner has no clue what a robot is?

do we “discriminate” against robots just because of what they do? Oh, I’ve seen YOUR kind before… you’re one of those weirdo cybernetics rights activists, huh? Like those freaks that broke into the Sony factory and set all those Aibos “free” upon the world only to have them die, cold and miserable, within hours as their batteries expired?

That’s pretty funny, did that really happen? You read negative connotation into “discriminate” – I didn’t intend any. Discrimination is fine against robots if it’s justified.

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By: Peter http://www.lessig.org/2006/01/very-good-fair-use-opinion-re/#comment-17652 Thu, 02 Feb 2006 15:32:35 +0000 http://lessig.org/blog/2006/01/very_good_fair_use_opinion_re.html#comment-17652 There’s been a lot of interesting back and forth on this thread. However, how many actually took the time to read the decision.

Apparently, Mr. Fields set up his site precisely to trap Google and collect statuatory damages. He knew about, and consciously chose not to, incorporate the robots.txt and metadata to prevent indexing and caching.

Some law professor (I forget who) mentioned a schmuck factor that plays a role in copyright cases. Mr. Fields had that factor count against him.

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By: poptones http://www.lessig.org/2006/01/very-good-fair-use-opinion-re/#comment-17651 Thu, 02 Feb 2006 15:19:49 +0000 http://lessig.org/blog/2006/01/very_good_fair_use_opinion_re.html#comment-17651 Something else to ponder: if robots.txt is legally enforceable, what about people.txt (supposing there was a comparable standard), whereby you could just “request” that certain people didn’t view your site?

Umm… you mean like how I already can’t view Hustler.com, Penthouse.com, most web discussin boards, or most of the videos on itunes without first “becoming a member” or even paying for them?

Again, I don’t see the “tyrany” there – we should have the right of free association. If there ever came to be a “people.txt” standard I would imagine it would be encumbent upon the tools used to verify themselves against it and “illegal” only for the user to directly circumvent it or for software makers to supply tools to the public that did so. It’s still a regulatory nightmare, and much easier I think for site operators to simply erect “members” pages… as we have now.

do we “discriminate” against robots just because of what they do?

Oh, I’ve seen YOUR kind before… you’re one of those weirdo cybernetics rights activists, huh? Like those freaks that broke into the Sony factory and set all those Aibos “free” upon the world only to have them die, cold and miserable, within hours as their batteries expired?

Of course we “discriminate” – because robots are not people; they consume bandwidth like candy and they index sites and content and follow every link exposing potential security vulnerabilities and archiving content we may want to make only temporally available. There are all sorts of reasons to direct robots to certain pages and not others… that’s why the “standard” was established.

BTW the “broadcast flag” was struck down only in the sense the FCC was told it could not act as dictator. Plans are still heading in that direction because, no matter what the EFF might think, it’s neither a new precedent or an unreasonable one and congress will surely give it force of law, if not this time then the next. However, the FCC should play no part in this as the FCC was not needed to enforce regulations regarding SCMS, the “CD generation and copy bits,” and they are not required here.

Every regulation the entertainment industry uses to hamstring the public can be turned against it in political fashion. So long as the channels themselves remain (and are made to remain) neutral and open, “we” can compete.

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By: John S. http://www.lessig.org/2006/01/very-good-fair-use-opinion-re/#comment-17650 Thu, 02 Feb 2006 10:54:33 +0000 http://lessig.org/blog/2006/01/very_good_fair_use_opinion_re.html#comment-17650 Good comparison, to the broadcast flag being a mere bit, and not “protecting” anything in the strict sense of the word.

But the broadcast flag fule made by the FCC was struck down, for some reason like lack of authority, right? Well, in any case – suppose that it becomes law. THAT’S where the force of law comes from in respecting the authoritah of the bit – the fact that there’s a law saying so. This is an interesting comparison though in terms of whether or not circumvention to ignore a bit.

Something else to ponder: if robots.txt is legally enforceable, what about people.txt (supposing there was a comparable standard), whereby you could just “request” that certain people didn’t view your site? Eg, like on a political party’s website: [users: other_party_members; disallow: all]. Or a state’s webpage: [users: out of staters; disallow: all]

I guess the question this goes to is as follows: If there’s an implied license for ANYONE to view things if you put them on the web, do we “discriminate” against robots just because of what they do? Or if there’s NOT an implied license for anyone to view things on the web, is the problem that site operators can start banning particular sets of individuals from sites at all significant?

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By: poptones http://www.lessig.org/2006/01/very-good-fair-use-opinion-re/#comment-17649 Thu, 02 Feb 2006 06:44:57 +0000 http://lessig.org/blog/2006/01/very_good_fair_use_opinion_re.html#comment-17649 Perhaps I should have put it this way – it is not a mechanism that the DMCA will make circumvention thereof illegal, since it’s voluntary.

That’s not entirely true. I’ve not yet heard of a case where someone was directly sued over an invasive robot, but there have been numerous applications of the DMCA to people who “hacked” websites by doing something as simple as hitting enter when prompted for a password. I’m not saying that’s just, but cases of this sort of thing are not at all hard to find – one I recall just quickly involved a newspaper site wherein someone discovered they had left a back door – probably discovered by shortening or altering a known good URL. When the person reported this vulnerability to the site admin, to thank him for his efforts they pressed charges against him for “hacking” their site.

On the other hand, with the web, what is the default if there is no robots file? Do you presume permission or lack of it for the site to be indexed?

Thankfully, at present I think the “accepted norm” is no robots.txt=crawl as you please and robots.txt=respect mah authoritah! Crawlers that don’t show this respect often end up banned via whatever means are required.

Last year there was a well publicized (blogged) case wherein the archive.org wayback machine played party to a DMCA case in exactly this way. I’m not sure how it came out, but there was a lot of talk at the time about how robots.txt isn’t really a “technological countermeasure” under the DMCA because its use is allegedly voluntary (even though impolite robots are routinely banned by site operators and only certain “favored” bots that play by established rules allowed to crawl their site) and because it doesn’t really present any sort of obstacle or barrier to entry.

However, if someone’s front door is ajar and you walk into their house without permission you can still be charged with trespass.

Additionally, both the very malinged “broadcast flag” on digital tv and the decades-old “generation” and “copy allowed” bits employed by CD players perform essentially this very same function, they have been given force of law, and they do not in any other way “inhibit access” except by their mere presence. They do not enable an encryption “padlock” of any sort – they merely provide “information” it is now illegal to ignore.

My bet is, if robots.txt files are now considered only a matter of proper etiquette, you can well expect robots.txt to eventually be given force of law – if precendent won’t do, then expect a congressional rider in the near future to patch that hole.

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By: John S. http://www.lessig.org/2006/01/very-good-fair-use-opinion-re/#comment-17648 Thu, 02 Feb 2006 02:56:36 +0000 http://lessig.org/blog/2006/01/very_good_fair_use_opinion_re.html#comment-17648 poptones – can you explain what you mean when you say crawlers that neglect to honor these standards are banned? You mean on a site-by-site basis, right? Does this mean an IP address is blocked, or that the site just blocks anything claling itself, eg, “googlebot” ?

And as for whether or not it is DRM – I see your point about it being DRM in the sense it is digital, and is used to manage rights. But like you say, it’s a standard that parties can choose to follow or not (perhaps at their own risk of getting banned). Perhaps I should have put it this way – it is not a mechanism that the DMCA will make circumvention thereof illegal, since it’s voluntary.

As for the lunch/register example: yes, of course it’s stealing. But I think you need to look at what the sign operates as. By DEFAULT (with no sign) you cannot steal from a store without breaking the law. I don’t think it’s implied social contract, but instead just plain old theft. The sign is just giving notice that you are not waiving legal rights you already have.

On the other hand, with the web, what is the default if there is no robots file? Do you presume permission or lack of it for the site to be indexed?

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By: poptones http://www.lessig.org/2006/01/very-good-fair-use-opinion-re/#comment-17647 Thu, 02 Feb 2006 02:18:16 +0000 http://lessig.org/blog/2006/01/very_good_fair_use_opinion_re.html#comment-17647 BTW, robots.txt IS DRM, it is just “weak” DRM. Robots.txt has become widely accepted within the industry and crawlers and other automated tools that neglect to honor its use are often banned.

If I leave a note at the register saying “gone to lunch, please leave your money on the counter” and you instead waltz out the door because no one is around to catch you, are you not still stealing? Isn’t that a violation of some sort of implied social contract? Have you, in that act, not deprived me of a bit of my rights?

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By: poptones http://www.lessig.org/2006/01/very-good-fair-use-opinion-re/#comment-17646 Thu, 02 Feb 2006 02:09:38 +0000 http://lessig.org/blog/2006/01/very_good_fair_use_opinion_re.html#comment-17646 Robots.txt and metatags aren’t even generic anymore; yahoo and google and any other reputable company identify themselves in their crawler’s header strings. Just as it is possible to have different “pages” for internet explorer and firefox and netscape browsers, one could even use the robots.txt file to steer yahoo toward one version of the site and google to another, adjusting content as needed in order to fulfill agreements or just to “tune” metadata so as to score better with each.

Setting up a commercial web site without knowing about the operation of metatags and robots.txt files would, in this day, be rather like opening a gas station without knowing how to properly check the oil in a car.

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By: John S. http://www.lessig.org/2006/01/very-good-fair-use-opinion-re/#comment-17645 Thu, 02 Feb 2006 00:43:00 +0000 http://lessig.org/blog/2006/01/very_good_fair_use_opinion_re.html#comment-17645 Thanks for pulling this back on to the case, mice. I think I disagree with you. Here’s where and why:

“we argue that is is not an implied license, but in fact the intended license that users are expected to make cache copies”

I think there are only really express and implied licenses in the law – do you mean to suggest a new type of license, the “intended” license? Do you intend this to be a subspecies?

The opinion is very interesting on this point. They rely on the admitted fact that plaintiff Field KNEW that using robots.txt and/or metatags would have kept googebot out and/or prevented caching. The knowledge requirement works fine when the creator admits that he knows of these mechanisms, but fails when (as I suspect to usually be the case) when people putting things online DON’T know about how to instruct spiders.

But there’s is something else the court sneaks in. Another fact in evidence in the case is that the robots/metatags methods are widely publicized and well known. This is where I see a door opening.

If the actual knowledge requirement needed to create an implied license can be replaced by constructive notice when an opt-out procedure is very well known, then this is a way we can give opt-out, non-DRM measures like robots.txt and metatags legal force… if such methods are “widely known” then we might impute knowledge to those who fail to use it.

Of course, the counterargument is that this penalizes those who know the least.

“there seems to be no dispute that making a cache copy is in any way a violation of copyright.”

I agree that this issue is not “in dispute” in the case. But that doesn’t imply it cannot be an issue generally. It only means the plaintiff didn’t complain about it. Maybe this was strategic – he actually DID have a robots file that allowed all search engines. Perhaps he thought if he alleged that the original spider crawl was infringing, he’d more clearly lose to google’s implied license defense.

It’s important to note what happened here with the robots/metatags – he admitted to knowing HOW to do something, and then chose not to do it. The enormous barrier is that nobody knows this until he gives testimony and admits it. This cannot be generalized to the web since almost always you know no idea what the party creating a website knows. This is why the constructive notice idea I mentioned above seems like something worth discussing.

Thoughts, anyone?

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By: three blind mice http://www.lessig.org/2006/01/very-good-fair-use-opinion-re/#comment-17644 Wed, 01 Feb 2006 17:59:38 +0000 http://lessig.org/blog/2006/01/very_good_fair_use_opinion_re.html#comment-17644 This case is completely about DRM. Without DRM the publishers have no incentive to participate in google’s plan.

poptones, we are probably on the same page here, but you seem to be a chapter or two ahead.

this case is about the google cache – not the proposed google book search. the google cache quite literally caches a copy of a webpage and offers links to this cache. it has nothing to do with printed material and it seems as though you are confusing the two.

ACS highlighted the distinction quite nicely:

Actually I think the judgement in Fields is a rather good example of such a distinction. As Lessig points out, the fact that someone has already released the information to the public in the form of a web page gives an implied licence to cache that material. A book does not have a similar implied licence and therein lies the distinction.

when a web page is pubished without any metatags or content controls (e.g., DRM) , we argue that is is not an implied license, but in fact the intended license that users are expected to make cache copies.

the way google subsequently uses the cache is, again, a bit dodgy and we have to think about this, but there seems to be no dispute that making a cache copy is in any way a vilolation of copyright.

great thread everyone! well worth the time we’ve spent on it.

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By: poptones http://www.lessig.org/2006/01/very-good-fair-use-opinion-re/#comment-17643 Wed, 01 Feb 2006 13:43:32 +0000 http://lessig.org/blog/2006/01/very_good_fair_use_opinion_re.html#comment-17643 we don’t agree that this is a DRM issue to the google cache. the assumption is that the google-bot is not bypassing any access or content controls. anyone who publishes a web page on the world wide web knows how it works.

Of course, mice, and that is the point. Because the web itself has evolved a limited means of DRM: passwords and robots.txt. If I have a web page wherein I offer artwork to visitors to my site but I do not want that artwork offered via deep links, I need only include those pages in the robots.txt file. And if I want to charge for those images, I can make membership mandatory and the crawlers will have no access even if they are impolite and ignore my robots.txt file.

And, in this way, it seems to me pretty clearly evident this is the main of the objections being raised by publishers. If I offer a website wherein the goal is to attract visitors I can easily, as part of the very design of that website, specify what may be linked by those machines that index websites.

But publishers do not yet have the material online that google would be “linking” in this case. And one of the main reasons – most likely the vry only reason – is they do not yet have in place a means of robust DRM. For if they DID have in place a means of robust DRM then the works they offered, online, could contain within them this same sort of “robots.txt functionality.”

Without the infrastructure in place to make suitable online use of these works, google threatens to dilute any future plans these publishers may have to offer works online once a suitable system of DRM is in place. Thus, in that regard, it fails to meet at least one mettle of “fair use.”

In the presentation lessig talks at some length about those works which are “in copyright but out of print.” he talks of these works as if they are somehow “lost in the ether” and how many may never be seen unless google be granted this “fair use” because there is no one to make them otherwise available.

But again, this is a pretty big fish (herring, red). For example, there are many Disney films which are also “out of print” – one is presently being offered, amid much hype, “for only 70 days” – after that the DVDs go back in the vault until Disney feels like offering them again. Thus, keeping works “out of print” is one way the rights holder adds value to their work by deliberately restricting the supply into the market of that work… they create “artifical scarcity of production.”

At present, book publishers have no robust means of securing their rights in the online realm. And the “barrier to entry” is, in this case, the greatest of all for written works – I cannot put a book in a drawer and let it “cook” for ten minutes and create a completely accurate, word for word copy of that book as I can with films and music.

Books have a higher barrier to entry. Likewise, I cannot publish a book so easily as I can a CD or DVD – books, in the classical context, are much more complex to manufacture. Therefore if I am a rights holder but I do not at present control a tool of production (or have the money to invest in supplies) then I am inhibited from “sharing” that knowledge which I own.

Because the production costs are so very low in the electronic realm, however, it would be entirely cost effective (as well as potentially profitable) for me to make available my knowledge via the electronic realm. Without a robust means of protecting my rights within that realm, however, I have pretty much zero incentive to do so – transcribing the book electronically and offering it for download would simply dilute whatever future value the work might have had; I would be shooting myself in the foot without a bandage.

In this case again, the absence of robust DRM is inhibiting the sharing of knowledge.

So, it is not these works are “lost” into some intellectual black hole – they are simply “in limbo” because their guardian has deemed them too vulnerable at this point to venture into the world outside brick and mortar libraries (where they are still available, BTW).

I would like to point out that here again copyright is working as intended – because copyright does not protect the information bound in these works, only the “distillation of knowledge” they represent. The fact they are out of print might very well reflect their social (in)significance, thus within the realm of “social value” they represent a far tinier portion of our culture than their numbers reflect on that graph. But in either case there is nothing to prevent me, you, or anyone from reading these works and then refining them into new expressions of knowledge – our expressions of knowledge.

And this is, to me the single greatest hypocrisy of those who deride the publishing establishment for “not participating” in this “new culture.” Computers have put the means of production and creation in the hands of the proletariat, yet this seems to be “too hard” for most who would rather simply ignore the tools of creativity and set those tools of production to work usurping the rights of us all.

This case is completely about DRM. Without DRM the publishers have no incentive to participate in google’s plan. If google truly wants to be a friend to us all they should put their good name to work educating the online proletariat to the merits of DRM and engaging publishers of the old and new alike in a dialog that would bring about a system of rights management that would serve us all, equally and fairly.

We, the online proletariat, now control the tools of production and publication. But until our tools also give us reasonable control over the channels of commerce we remain squatters outside the gates, allowed to profit from our labors only with the blessing of the Lords and King.

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By: three blind mice http://www.lessig.org/2006/01/very-good-fair-use-opinion-re/#comment-17642 Wed, 01 Feb 2006 07:00:16 +0000 http://lessig.org/blog/2006/01/very_good_fair_use_opinion_re.html#comment-17642 Where did you get this notion that “the framers” didn’t think to mention freedom of speech?

that would be from american history, poptones. if memory serves us, bills of rights, similar to the original ten amendments attached to the u.s. constitution, existed in eight or nine states that formed the united states.

the “framers” – jefferson, franklin, washington, et al. – were well aware of of the desire from some states for broad assertions of inalienable “rights” of speech, religion, etc. these issues were debated – quite forcefully by james madison of virginia – in philadelphia in 1787. the framers could not achieve concensus on this and ultimately left out the enumeration of “rights” from the original constitution sent out for ratification. this, it would seem, is historical fact evident from the text of the original document.

here is perhaps a suitable citable reference.

our point is that the “framers” did achieve concensus on article 1, section 8 of the U.S. constitution that provides for intellectual property laws. this too, would seem to be historical fact as evident from the original document.

(see suitable citable reference above)

so it would seem to us that the concensus opinion of the framers was that intellectual property laws were considered important enough to include in the U.S. constituton and that the items included in the bill of rights (adopted one year later in 1788) were not. this is not to say that a bill of rights is a bad idea, or that these do not have the same level of importance today having been formally ratified, or that they should have been omitted from the original, but it seems clear that to the “framers”, intellecual property laws were deemed pretty damned important to freedom (which of course was what the constitution was designed to protect.)

*mice recover from derail. drag selves back ínto thread.”

we don’t agree that this is a DRM issue to the google cache. the assumption is that the google-bot is not bypassing any access or content controls. anyone who publishes a web page on the world wide web knows how it works. allowing other computers and users to make cache copies is not a “fair use” or an “implied” license, but the intended license chosen by the copyright owner or publisher. (google’s linking of a URL to their cache and making it available for others is a bit dodgy, but the making of the cache copy by the googlebot seems to us – as it did to the court and parties involved – not an issue.)

we do agree that a DRM solution would make this no longer an issue. next to a written constitution and a representative democracy, DRM is the third pillar of freedom.

Copyright does not protect specific implementations of ideas, it protects the interests of authors and publishers.

copyright protects the interests of authors and publishers by protecting specific expressions of ideas. you may not like how it is used, but please do not mischaracterize it.

Ideas and their implementations are best protected when they can roam and interact freely.

the commons-ists manifesto. this is the sort of squishy, kum-bah-yah logic that makes us mice shake our heads in dispair.

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By: ACS http://www.lessig.org/2006/01/very-good-fair-use-opinion-re/#comment-17641 Wed, 01 Feb 2006 02:04:04 +0000 http://lessig.org/blog/2006/01/very_good_fair_use_opinion_re.html#comment-17641 Josh Stratton –

I don’t really see how you can draw a distinction between a web search and a book search

Actually I think the judgement in Fields is a rather good example of such a distinction. As Lessig points out, the fact that someone has already released the information to the public in the form of a web page gives an implied licence to cache that material. A book does not have a similar implied licence and therein lies the distinction.

The logic behind the statement “if you only cache the first chapter, a search for things in later chapters would come up empty; if you cache only the first paragraph of a web page, a search for things further down in the page would come up empty” appears to me to be fundamentally flawed. Just because a document that is made publicly available without reward may be cached it does not follow that a document that must be purchased with licence can similarily be cached. This is the essence of Lessig’s initial commentary.

I do appreciate your reasons for fair use being applied in the circumstances If you’re looking for a book based on the name of a character or a half-remembered passage within it, etc., the card catalogue is not useful due to its brevity. I completely agree with this statement in support of searching a stored document, however, the point of this argument is to resolve whether the inital digitalisation of the work – that is – the reproduction of the work into the Google Print database is illegal without licence from the author.

ACS

PS – I am aware of de minimus non curat lex principle and in particular the Exxon case. In fact I agree that Google print can display the title, author and page number. I even agree that a short portion may be displayed. It is more the copying into the database that I am concerned with.

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By: ACS http://www.lessig.org/2006/01/very-good-fair-use-opinion-re/#comment-17640 Wed, 01 Feb 2006 01:54:37 +0000 http://lessig.org/blog/2006/01/very_good_fair_use_opinion_re.html#comment-17640 To Josh Stratton –

I don’t really see how you can draw a distinction between a web search and a book search

Actually I think the judgement in Fields is a rather good example of such a distinction. As Lessig points out, the fact that someone has already released the information to the public in the form of a web page gives an implied licence to cache that material. A book does not have a similar implied licence and therein lies the distinction.

The logic behind the statement “if you only cache the first chapter, a search for things in later chapters would come up empty; if you cache only the first paragraph of a web page, a search for things further down in the page would come up empty” appears to me to be fundamentally flawed. Just because a document that is made publicly available without reward may be cached it does not follow that a document that must be purchased with licence can similarily be cached. This is the essence of Lessig’s initial commentary.

I do appreciate your reasons for fair use being applied in the circumstances If you’re looking for a book based on the name of a character or a half-remembered passage within it, etc., the card catalogue is not useful due to its brevity. I completely agree with this statement in support of searching a stored document, however, the point of this argument is to resolve whether the inital digitalisation of the work – that is – the reproduction of the work into the Google Print database is illegal without licence from the author.

ACS

PS – I am aware of de minimus non curat lex principle and in particular the Exxon case. In fact I agree that Google print can display the title, author and page number. I even agree that a short portion may be displayed. It is more the copying into the database that I am concerned with.

I also posed the questions in my initial post, in particular, ‘how much of the book will be displayed’.

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By: poptones http://www.lessig.org/2006/01/very-good-fair-use-opinion-re/#comment-17639 Wed, 01 Feb 2006 01:33:59 +0000 http://lessig.org/blog/2006/01/very_good_fair_use_opinion_re.html#comment-17639 Copyright does not protect specific implementations of ideas, it protects the interests of authors and publishers.

I am an author and publisher. You are an author and publisher. Everyone on this planet equipped with a computer is author and publisher.

We should all have rights to our works. Copyright is what enforces our rights. Anyone at any time is free to give away those rights when and where they choose simply by attaching license. Arguing we should all be forced to give up rights to our work simply because it offends some narrow ideology is tyranny.

Ideas and their implementations are best protected when they can roam and interact freely.

Copyright does not prevent the passing of ideas. So far as implimentations, that is knowledge. and my knowledge is mine alone and it is coercive to demand I give up my knowledge to you in exchange for… what?

If I want to write a math book I have to be able to eat while I am doing it. If I have more knowledge about math than you then I deserve more than you to be compensated for my work – and it is my work and therefore my right to demand compensation as I see fit. It is your right to turn away, find someone else’s math book, or write your own in my stead. Copyright doesn’t prevent anyone from being able to learn math, only from being able to learn math from me without agreeing to my terms. It is not your right, or that of a free society, to dictate to me those terms.

It is impossible (and I would argue immoral) to deny anyone the right to access information. Knowledge is not merely information, it is the embodiment of it. Refusing creators their rights regarding that embodiment only ensures fewer will take the time to bottle this ever rising tide of “information” into actual, usable, knowledge… thus further ensuring an ever widening gap between those with the skills and facilities to do this on their own, and those who do not. Rather than becoming a new democratizing force in the world this “information culture” will simply better ensure the security of the “information elite” – the governments, banks, and long established publishing oligarchy

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By: poptones http://www.lessig.org/2006/01/very-good-fair-use-opinion-re/#comment-17638 Wed, 01 Feb 2006 01:18:12 +0000 http://lessig.org/blog/2006/01/very_good_fair_use_opinion_re.html#comment-17638 I don’t know why you’d lump libertarians in with socialists and marxists. The two groups couldn’t be more different from one another.

that was the point, CM. read it again.

BTW I apologize for my rambling tone of late. I’ve been working on other things and sometimes it seems my fingers cannot move fast enough to get things out. And obviously, I do not use the preview…

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