[pdrayton]

In reply to:

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A consensus? If the experts are divided, there is no consensus.

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I'm sorry you misread what I wrote and thought that I said "consensus of all legal experts". That's not what I wrote.

In reply to:

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I hadn't heard that. Do you know the names of any of the proposed bills, I'd like to read them.

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Again, you saw something I didn't write. "Moves" in Congress encompases many things. Lobbying, for instance. I'm sorry you misread yet again what I wrote.

[minderbinder]

"I'm sorry you misread what I wrote and thought that I said "consensus of all legal experts".
Nah, I was just having a laugh at your expense. I'm sorry you misread what I wrote.
"Moves" in Congress encompases many things. Lobbying, for instance."
OK, play the semantic game instead of answering the question (and you did mention proposed legislation, did you not?). Do you have any links to info about this lobbying (or other moves). I'm still interested in finding out more about this. (who is doing the lobbying? why do they want to stop web indexing?)

[pdrayton]

----------------------------------
Those who wish to debate the finer points...
... need to master them.
----------------------------------
Quite a few of us are not only being clear about where we stand, and that experts are not all in agreement, but are also providing very valuable information that gives great depth to the point of view that we hold.
It will be interesting to see if you can do the same.
Here's just one example below. Plus, you should also investigate HR 2391. There are plenty of others that you can find using : House of Representatives, United States Senate and last, but not least, Google.

Ten Examples of the Potential Impact of HR 3261
1). A price comparison web site could be prohibited from gathering price information for consumers. For example, an airfare information site would be precluded from gathering flight and price information from various airlines sites to compile in one, convenient site.
2). A public interest web site could be precluded from gathering headlines with links to news stories of interest to its members.
3). An organization like NetCoalition might not be able to gather state spam laws and post side-by-side comparisons on its web site.
4). A university professor might be precluded from gathering weather information from a variety of web sites for use in a paper that argues for or against the increase of global warming.
5). A local PTA might be prohibited from assembling information on drugs and other treatments for childhood diseases, and make their research available on the organization's web site.
6). A college boosters sports site could be prohibited from providing all kinds of information, from team statistics to game times to television schedules.
7). A car manufacturer could stifle competition by preventing companies who make replacement parts from publishing charts showing which of their products are less expensive replacement parts for those sold by the manufacturer.
8). A member of Congress running for reelection might be precluded from publishing his voting record.
9). A small town could be prevented from publishing a list of concerts, sporting events, movies and other coming attractions, with links to sites selling tickets to the events.
10).Searching for information online, which occurs literally millions and millions of time every day for free, could become a fee for service activity.

[mac_the_knife]

In reply to:

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"Copying entire works isn't prohibited by copyright law."
It isn't? Where in the fair use clause is copying entire works permitted? I know it's allowed for individuals to make backups of works they own, but this doesn't fall under that category.
Fair use is very specific and limited. What part of it allows copying entire works like this?

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I think this is a mischaracterization of the fair use doctrine. Let's take a look at what the US copyright law says about fair use:

In reply to:

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Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. 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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

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There's nothing in the copyright law that enumerates what type of uses are fair, and what type of uses aren't. They just outline some broad categories of things that are fair use, and they give four factors that are to be "considered." What this means is that the fair use limitation was not intended to be specific, and not intended to carve out bright-line categories of fair use. For more about that, take a look at what the House of Representatives had in mind when drafting the Copyright Act:

In reply to:

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The statement of the fair use doctrine in section 107 offers some guidance to users in determining when the principles of the doctrine apply. However, the endless variety of situations and combinations of circumstances that can rise in particular cases precludes the formulation of exact rules in the statute. The bill endorses the purpose and general scope of the judicial doctrine of fair use, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis.

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So yes, the courts will rule on whether Google's reproducing entire books and displaying parts of them on line are fair uses. How will they do this? They'll basically draw comparisons to cases that have gone before it. They'll listen to Google's attorneys say, "well, Kelly was fair use, and what we're doing is similar to Kelly because x, y, and z." "Our use is like Connectix, because x, y, and z." Then they'll listen to these publisher's associations. What kind of argument will they come up with? They better come up with some analogous situations where copying has not been fair use. And they better be pretty persuasive about it, too. If their basic argument is, "well it's our property, and it's not fair," they'll get their butts laughed right out of court.
I guess my point is, fair use is not as specific and not as limited as you may think. Things will get interesting over the next couple years...

[mac_the_knife]

Hey pdrayton, I think you better double check your HR bill numbers.
H.R. 3261 is a bill that allows a few immigrants to stay in the U.S. legally.
H.R. 2391 is the "Safe Communities and Safe Schools Mercury Reduction Act of 2005."
(source: http://thomas.loc.gov/)
I don't see a thing in these bills about websites.

[pdrayton]

Well... I am dyslexic. Maybe I transposed something.
Does being dyslexic screw up the copy and paste function on a PowerBook?
Hehehehehe... I'll be back!
-----
OK. I'm back. Hmmm... the numbers are correct. Would the House happen to re-use last year's numbers? This all started last year. You know how it goes... it takes a long time for it to become enacted.
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OK. I'm back. Again! Look at this House of Representatives web site. You'll see the name (H.R. 3261, Database and Collections of Information Misappropriation Act), see the number (HR 3261), but when you click on it you get something about watercraft on Lake Powell or something.

I say's it's Congress' fault!

-----

I'm back... for the 3rd time. And I found it!

It's here.

[pdrayton]

In reply to:

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There's nothing in the copyright law that enumerates what type of uses are fair, and what type of uses aren't. They just outline some broad categories of things that are fair use, and they give four factors that are to be "considered."

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You've been mentioning that... and it is what made this information from an article in "The Chronicle Review" catch my eye regarding those 4 factors:
" The principle of fair use -- in essence, a legal defense against an accusation of copyright infringement. If you are accused of infringing, you can make an argument that your use of the protected works is "fair" because of some combination of these factors: The nature of the original work makes it important that it be publicly discussed; the nature of your use of it is important because of teaching, research, or commentary; you do not use very much of the original work; your use does not significantly affect the market for the original work. In the public discourse about fair use, it has served as a term representing a collection of uses that consumers could consider "fair," like recording television shows for later viewing, making audiocassette tapes or MP3 mixes from compact disks, and limited copying for private, noncommercial sharing.

The principle that after the "first sale" of a copyrighted item, the buyer can do whatever he or she wants with the item, except publicly perform the work or distribute unauthorized copies for sale. The first-sale doctrine is what makes lending libraries possible.
The concept that copyright protects the specific expression of ideas, but not the ideas themselves. This is the least understood but perhaps most important tenet of copyright: You can't copyright a fact or an idea. Because you can't, anyone may repeat your idea, whether to criticize it or build on it. Journalism, along with many other forms of common expression, depends on the principle.

The promise that copyright will last -- as the Constitution demands -- for only "limited times," thus constantly replenishing the public domain. The public domain allows for low-cost scholarship, research, and revision of formerly copyrighted works. The reason that bookstores are filled with high-quality yet affordable scholarly editions of Mark Twain's The Adventures of Huckleberry Finn and John Stuart Mill's On Liberty is that they are in the public domain. The reason there is no annotated scholarly edition of Ralph Ellison's Invisible Man is that it is not.
In other words, copyright, when well balanced, encourages the production and distribution of the raw material of democracy. It is supposed to be an economic incentive for the next producer, not a guarantee for the established one. "
Notice especially the part about lending libraries being able to do what they want with an item they acquire. I'm sure that's why Google is getting permission from libraries to scan their collections.

[minderbinder]

So let's look at Google's use.
"(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;"
In this case, commercial.
"(2) the nature of the copyrighted work;"
This probably varies based on the books themselves, some fiction, some nonfiction, some previously digitized to the web or other electronic form, some not.
"(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and"
Google is making a copy of the whole work.
"(4) the effect of the use upon the potential market for or value of the copyrighted work."
The argument that this has the potential to hurt book sales has been made.
That's two that are definitely NOT in the fair use definition, one that arguably isn't, and one that's debatable.
"There's nothing in the copyright law that enumerates what type of uses are fair, and what type of uses aren't."
True. But there have been many cases that have set precedents in this area, and it seems dishonest to mix and match different aspects of different cases. For example, to use VCR timeshifting as an example of copying an entire work, but extrapolate that to a company that is making content available online seems like a stretch to me.
I don't agree that the publishers have the burden of proof of finding similar cases (because frankly I don't think they exist). They merely need argue that the cases you mention aren't relevant in this case (in the thumbnail case, the originals were copied in their entirety, but the full copies were destroyed after the thumbnails were made).

"limited copying for private, noncommercial sharing."
That's exactly the opposite of what Google is doing, isn't it? It's not limited, it's certainly not private, and it's commercial.
"Notice especially the part about lending libraries being able to do what they want with an item they acquire. I'm sure that's why Google is getting permission from libraries to scan their collections."
Yeah, I noticed that part also said "except publicly perform the work or distribute unauthorized copies for sale." Google is distributing copies (sure, they're partial ones, assuming people don't hack the system). Are they authorized? No. And while they're not specifically for sale, Google is making money on those copies via advertising. That part doesn't seem to support Google either.

[pdrayton]

In reply to:

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"(2) the nature of the copyrighted work;"
This probably varies based on the books themselves, some fiction, some nonfiction, some previously digitized to the web or other electronic form, some not.

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Wow. You really misunderstand what Google is doing. Not even the publishers who have filed suit against Google agree with you here.

In reply to:

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"(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and"
Google is making a copy of the whole work.

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Legal precedent doesn't agree with you. I'd give you sources for that but since you don't provide the same when requested of you I won't waste my time.

In reply to:

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"(4) the effect of the use upon the potential market for or value of the copyrighted work."
The argument that this has the potential to hurt book sales has been made.

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Again, legal precedent goes against you here. As has been said before you can't use copyright law to protect your ability to do something or create a product that you have not already done. You're completely ignoring the facts that others have pointed out previously in this thread so that your opinion seems based on fact. It's not.

In reply to:

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"There's nothing in the copyright law that enumerates what type of uses are fair, and what type of uses aren't."
True. But there have been many cases that have set precedents in this area, and it seems dishonest to mix and match different aspects of different cases.

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Try practicing what you preach (the part in bold).

In reply to:

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I don't agree that the publishers have the burden of proof of finding similar cases (because frankly I don't think they exist). They merely need argue that the cases you mention aren't relevant in this case (in the thumbnail case, the originals were copied in their entirety, but the full copies were destroyed after the thumbnails were made).

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If you want to ignore the law, fine. But since this is heading to court your reasoning counts for zippo.

In reply to:

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"limited copying for private, noncommercial sharing."
That's exactly the opposite of what Google is doing, isn't it? It's not limited, it's certainly not private, and it's commercial.

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Wow. Surprised you wrote that. Go back and read what Google is actually doing. Go back and read what the publishers themselves have said they aren't currently doing.
You are certainly entitled to your opinion. But your claims to want to educate yourself on this issue by demanding of others to provide citations, documentation, references, sources, etc are coming across as a smokescreen since you don't return the favor.
Those who wish to debate the finer points... need to master them! Get to work!

[minderbinder]

"Not even the publishers who have filed suit against Google agree with you here."
Did you even read my post? This is the one point that DOESN'T go against Google. To be honest, this point is the most vague in the law and doesn't seem to be discussed that much.
"Legal precedent doesn't agree with you."
Doesn't agree with what? Google has ADMITTED they are copying the whole work. And fair use specifically says that the more of a work is copied (all of it being the maximum possible, right?) the less it tends to be fair use.
From your post: "you do not use very much of the original work". Isn't Google copying ALL of the original work?
"I'd give you sources for that but since you don't provide the same when requested of you"
Sorry, I missed the part where you asked me for a source. Let me know what you'd like a source for and I'll provide it if I can.
"Again, legal precedent goes against you here."
Again, I'm not talking about legal precedent, I'm talking about the law itself. The law says uses that damage the market tend not to be fair use. Whether Google print damages the market isn't easy to prove either way, but that's certainly what the publishers are going to argue.
"As has been said before you can't use copyright law to protect your ability to do something or create a product that you have not already done."
That's not what the publishers are trying to do, they're just trying to protect their rights on the books that already exist.
"You're completely ignoring the facts that others have pointed out previously in this thread so that your opinion seems based on fact. It's not."
Not sure what you're referring to, what facts do you feel I'm ignoring?
"If you want to ignore the law, fine. But since this is heading to court your reasoning counts for zippo."
What law am I ignoring again? The law I've been looking at is the one that says fair use shouldn't be for profit and shouldn't use entire works. Those both sound like Google to me.
And just for the record, we're all posting on a message board. Pretty much everything here counts for zippo. /forums/ubbthreads/images/graemlins/ooo.gif
"Go back and read what Google is actually doing."
Sure. Google is digitizing the entire works. Did I get that wrong? Google is allowing the public to search those works, which wouldn't be private. Did I get that wrong? And Google is trying to profit via advertising, which would make the venture commercial. Did I get that wrong?
It's difficult to address your comments when you don't even say what you disagree with.

[pdrayton]

In reply to:

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Again, I'm not talking about legal precedent, I'm talking about the law itself.

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You can't talk about the law itself without including legal precedent. It's one of the cornerstones of our legal system.
If you want to know what questions you have been avoiding simply go back and read the posts. Don't ask me to do your work for you. I don't let my college students get away with that, nor will I succumb on a forum.
I repsect your opinions. However, you seem to be trying to engage others at a level for which you are woefully unprepared.

[minderbinder]

"You can't talk about the law itself without including legal precedent."
But to disagree with a statement like "Google is making a copy of the whole work" based on "legal precededent is ridiculous. That statement is a fact. Google has admitted to it. You don't disagree with that, do you?
And what does the law say?
"(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole"
In this case Google is using the whole copyright work. That would be the maximum amount and substantiality, would it not? Sure, legal precedent is used in law. But this particular point is easily determined without legal precedent. Is google using the whole work? It's a yes or no question. Do you disagree with the answer "yes"?
"If you want to know what questions you have been avoiding simply go back and read the posts."
Great argument. I missed something brilliant you said. But since you won't let on what it was, I can't possibly dispute it. Congratulations! You win!
Speaking of ignoring, you seemed to have missed my offer to happily provide a source (if you'd just let me know what material you'd like a source on). Or have you changed your mind?
"Don't ask me to do your work for you."
Sorry, when you are vague it only seems reasonable to ask you to clarify. I don't see how clarifying your vague statements is my work. (and trust me, if I could I absolutely would)
'I don't let my college students get away with that..."
Nicely done! Could have been a bit more subtle, but you managed to get it in there. Might I ask what subject you teach, or would that be asking you to do my work for me?
"I repsect your opinions."
I sincerely doubt that.
"However, you seem to be trying to engage others at a level for which you are woefully unprepared."
Honestly, if you want to call me a moron, just come out and do it. If you're going to sink to insults, might as well do it right.

[pdrayton]

Wow.
You have quite an imagination! /forums/ubbthreads/images/graemlins/shocked.gif

[minderbinder]

So...
IS Google using the whole work?