"That's got to be some pretty fancy technology to do that."

Wow, has he never used Adobe Reader?

His argument is really strange, at any rate. He basically says that since the snippets that Google shows for in © in print books are scanned at a high resolution, then Google is infringing on the publishers and authors copyright of that snippet. I guess they are supposed to lower the font a few point sizes.

A key point of the Arriba Soft case that Dear misses is that, in order to create a thumbnail of a collection of images, you must have a collection of the originals.

There's also this gem: "And one more thing. Those "Buy this Book" links on Google Book Search results pages. Who gets paid when Google sends the user to Abebooks or Alibris? Or Froogle?"

Everyone in the distribution chain gets paid -- including the author. Duh.

• Posted by: Brian Mingus
• January 15, 2006 9:11 PM

While I agree that having all the digital works online is a wonderful thing, I respectfully disagree with Lessig's legal theories.

Linking to images that exist online is not the same as linking to books that do not exist online. There is a transformational flaw in his theory. Google is not degrading the quality of a book, it is fragmenting the work and transforming the medium of the work. The prior case law Lessig utilizes to support his theory does speak to fragmenting a piece of work, nor does it speak to changing the medium of the work. I submit that it is the wrong legal precedent as the characteristics of the case are quite different.

If I take the Yellow Pages, scan it, and put fragments of the images onto a CD, is Lessig suggesting that I be allowed to sell the CD? If I do the same but create and index that points to fragments of the Yellow Pages listings, is he also suggesting that is also AOK? I do not see how one can argue that is fair use. Yet this is what the law would be allowing Google to do, if the courts support Lessig's first theory. I could even argue that I would be allowed to scan a CD, and point to fragments of the CD, say a entire song, without permission. While that would be nice, it is not right. Nor do we want the courts having to decide how much of a fragment is fair use for every single instance where people try to do the same thing, it does not scale.

Second, publishers are scanning bookings, the Open Content Alliance is scanning books. Lessig's theory on merits of marketplace failure is factually incorrect. Publishers and authors are seeking solutions. To rush and allow Google to set legal precendence is potentially very reckless. Let the publishers and authors find their own solutions and come to Google if they are not able to do so. Why the rush here?

The bottom line is that it is up to the publishers and the authors to determine if they want their material online and accessiable in fragments via an index. Many might, that is their choice, taking away their ability to choose seems very strange, especially as there are efforts underway that seek to enable them to opt-in.

To Brian's point, Google derives tremendous benefit from being a service that provides the card catalog. People that would otherwise go to another serivce like Amazon or a site run by publishers, will go to Google instead. Google will display advertising on those pages. Neither value is not shared with the authors or the publishers. If Google were doing this an a non-profit like the Open Content Alliance, that would be one thing, but to do this and receive explicit value that is not shared is not right.

Google has to know this is wrong on some level, otherwise, they would let developers run as many queries per day against their index with the results linking back to Google (better yet would be without any Google ads). But Google does not allow others to use their work without their permission AND a license, why should authors and publishers?

• Posted by: Curious George
• January 16, 2006 1:09 AM

I _love_ that Lessig used a copyrighted, watermarked image in his movie without even bothering to ask the permission of the rights holder. A poetic detail that speaks volumes.

Nice catch, Brian.

• Posted by: UC
• January 16, 2006 6:19 PM