January 14, 2006  ·  Lessig

So there’s a corrected version of the Google Book Search video here on youTube. Very cool video sharing service, just ripe for CC licenses.

The essence of the argument here builds upon the “market failure” justification for fair use: We recognize fair use where there’s a prominent market failure. Here, the market failure is caused by the insanely inefficient property system copyright law is. Given that, the use Google makes is plainly “fair use.”

Update: This is an updated version that substitutes a photograph. I stupidly used a photo without checking the license. The substituted photo is a beautiful image by fuzzbabble on Flickr. My apologies to the very talented Andrea K. Gingerich.

  • http://blog.justinpfister.com Justin Pfister

    Thank you for doing this. it was really helpful and enlightening. I feel i have a better grasp on the fundamental issues at hand.

  • http://crazybob.org/ Bob Lee

    Lawrence, have you tried Google Video? Love your speaking style.

  • http://www.bladam.com/ Adam

    Lawrence… it was great watching another one of your presentations.

    Can you give us some action items on this, though? It would seem clear that Google doesn’t exactly need a defense fund, so I’d feel odd donating money, but I feel compelled to do something.

    I was outraged when the my.mp3 case was wrongly decided, and I’d hate to see Google lose this case or — just as bad — settle out of court.

    Should we write specific Congress people or Senators? Write letters to the editor? What actions can we take to both appropriately inform the public about this critical issue and ensure a victory in the courts and/or legislature?

    I know that there are plenty of other significant IP issues of concern today, but I’m hopeful that the (popular) Google name should make this particular situation both understandable and compelling to a huge swath of Americans, and thus a particularly effective fight to get behind.

  • Graham

    This brings me back to iLaw ’03, where I had the privilege of attending many excellent talks by you and your colleagues.

    But, the .mp4 format works much better for me than Flash. The commercial web is littered with obnoxious adverts, so I uninstalled Flash from all of my browsers. It’s *very* rare that I miss it – this is one of those times.


  • http://www.bladam.com/ Adam

    My goodness, Graham… no idea if you’ll read followup comments, but there’s also a HUGE amount of good stuff based in Flash. Flickr (and tons of fascinating ideas built on its API), for instance, comes to mind!

  • Graham

    True, the folks at Flickr are doing interesting things with Flash. But I do what I can to distance myself from the excesses of commercial culture, which includes the plethora of obnoxious Flash adverts. The Flash installer won’t allow me to install it in just one web browser – it’s all or nothing. So, since FlashBlock only works with Firefox (not Safari nor Opera), and as I wrote it’s rare that I feel like I’ve missed something by not having Flash, I’ll remain Flashless for now.

    Just to be clear, I’m not crusading against Evil Flash. I just wanted to pipe up and voice my preference, and the reasons for it. I appreciate your constructive response. :)


  • elee

    very, very slick. I watched the original on BitTorrent, but this one on your blog is pretty seamless. I’ve already emailed the link to my copyright class.

  • bodo

    Hi Larry,

    I have some questions about the fair use argument.

    First: the definition of fair use is different from country to country. I guess in Hungary a fair use based defence wouldn’t stand simply because we have a list of what might be considered as fair use and what not.

    Second: how can you tell if the market has failed (for good)? Sure you can say that it is inefficient at a given moment but what happens if the market finally comes up with a service: you take the previously granted fair use right away? In my opinion market changes too quickly to make that argument long standing – even if in this case this market change is slower than Google’s tempo.

    Third: if market inefficiency is a good justification for fair use, why wouldn’t it stand for those goods in file sharing networks that are not on the market? Or to reduce even that: for those goods that are in copyright but orphan works? If Google wins the case should i bother with setting up an orphan works p2p network?


  • http://gandalf.aksis.uib.no/AcoHum/book/ KdS

    Very good presentation, topic has far reaching consequences for (Humanities Computing, among other things).

  • http://law.shu.edu/faculty/fulltime_faculty/pasquafa/pasquale.html Frank

    Fantastic presentation. I had one comment on your query: if Google can’t use an “opt-out” system for books, why can it do that for websites?

    It seems that the answer lies in the DMCA “notice and takedown” provisions, which effectively put the onus on copyrightholders to tell ISP’s to take links to infringing works off their indexes. (Search engines have been characterized as ISPs).

    But when I look at the statute, it appears to me that that is a very fragile safe harbor, full of all sorts of complications (as the Agence France Press v. Google case perhaps shows).

    Anyone know of some good analysis on how strong that safe harbor is?

  • Ron

    Concerning Google Book Search, here’s an argument, and I would be interested in seeing comments. If there is no monetary loss for the creator, then its “fair use.” For example, I make a xerox copy of a book, and then in turn sell the copy at a lower price, that adversly effects the original creator. That is not fair use.
    However, if I tape a sporting event to be viewed by myself at a later date, the creator does not lose financially, thus it is fair use.
    Concerning Google Book Search, I do not see how the creator loses financially. I’m sure some might disagree, and thus I would be interested in seeing how from such advocates.
    Another attack of this argument might be that the test propsoed: does the original creator lose financially? is inadequate.

  • Michael

    Prof. Lessig -

    I am a junkie for your lectures (delivered via streaming video). I haven’t had one in a while, and it was great to get a fix.

    One minor comment: there is a critical difference between the MP3.COM example and Google Book Search, which–with all due respect–I believe you neglected to mention.

    In the case of MP3.COM BeamIt, the server delivers the *entire* content of a record album. However, for copyrighted work, Google Book Search never does this (unless explicitly permitted by the copyright owner) — only snippets are available. It is therefore easy to argue that MP3.COM violates fair use, whereas it is hard to argue that Google Book Search isn’t within fair use.

    In regard to Ron’s question about how the creator could lose financially, you made the answer very clear in the video. Google is depriving the creator of the ability to exclusively sell ad’s on a Book Search system that the creator could set up. Yes, this is pretty far-fetched. But, it does seem that the representatives of the creators are attempting to push this argument.

    Finally, I truly wonder whether the rank and file members of the AG and AAP really and truly want to stifle Google Book Search. It is often the case that professional organizations go off half-cocked and take on causes largely because it gives the organization something to do and justifies the existence of the highly-paid executives.

    This is certainly the case in the biomedical research world where some of the most vociferous antagonists to open access publishing are non-profit professional societies, which are supposed to represent biomedical scientists. In fact, scientists benefit from open access publishing. It is only the high-paid bureacrats on the staffs of the professional societies that may have something to lose since the journal publishing enterprises might not be quite as profitable.

  • Marcus

    I am bewildered by the complete lack of main stream attention focused on Google page caching. How is it, that the press can publishers can trip over themselves to spew forests full of trees about Google print – yet, entirely miss the single greatest act of copyright infringement in the history of mankind.

    There is no defense, justification, or legal basis for Google being allowed to copy and redisplay pages (it erroneously calls it caching) from the entire web. It is flat out copyright infringement on a massive scale.

    Google print is first year law school trivia – Google “caching” is stuff that should before the supreme court. Yet none of you so called copyright attorneys have raised so much as a whisper about it.

    Where are you?

  • megan

    I actually have a question, so i’m hoping someone will read/re-read this entire page and answer it. what is the legal position of the libraries who have copies of these books in their collections, copies which they share mind you, and who have authorized Google access to their holdings?

  • http://teormin.ifmo.ru computer science community

    Thanks for video! YouTube became online videoservice #1. Boom of network videocontent together with spreading of broadband access made it leader among other videoservices: it left behind Yahoo!Video and GoogleVideo.

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