Joho the Blog » Copyright kidnappers, Google, and the prior restraint of Fair Use

Copyright kidnappers, Google, and the prior restraint of Fair Use

The copyright cartel has decided how they want us to play. According to Reuters:

The companies agreed to use technology to eliminate copyright-infringing content uploaded by Web users and to block any pirated material before it is publicly accessible.

Yeah, well that sucks. Will their fingerprinting technology be able to tell that I’m posting 15 seconds of Bill O’Reilly as part of a mock news report to make fun of him? That’s Fair Use. Technology can’t tell Fair Use from infringement. The copyright cartel’s idea would squeeze the leeway out of the system that allows culture to advance.

Google’s idea with YouTube is a lot better. Copyright holders would register their stuff so that Google can fingerprint it. If I then post the fingerprinted clip of O’Reilly, the copyright holder is notified (actually, Google says they’ll have a tool to identify infringers, so I don’t know if they get actively notified) and is given the option of asking Google to remove the clip or keep it up and get ad revenues from it. If the copyright holder has Google take my clip down, I’m notified and can counter-notify. (This is much like the DMCA, but it’s not the DMCA.) Google’s lawyers will then adjudicate the claim. If it’s not covered by Fair Use, the clip comes down. If they think it is, it stays up.

This beats the cartel’s plan by a mile. Actually, by three miles:

Mile 1: Material is not preemptively blocked from being published. Google thus allows for the possibility of Fair Use.

Mile 2: I have a right of appeal, so to speak, to Google’s lawyers.

Mile 3: Google has provided copyright holders with a damn good reason to allow people to post copyrighted material — the holder not only gets the mind share that comes from letting your material be spread, they also get cold hard cash via ad revenues.

Note, please, that IANAL. If I’m misunderstanding how either the cartel or Google plan works, lets me know. But, as I understand it, Google’s plan is far more aligned with our Founders’ intentions than the piratical cartel’s plan is. [Tags: copyright google copyleft ]

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5 Responses to “Copyright kidnappers, Google, and the prior restraint of Fair Use”

  1. The lesson for me is that we need more companies whose financial interests are aligned with the values we care about. The key factor in what you describe is that Google is powerful and credible enough to pull this plan off.

  2. David, I am very interested in the different approaches. My lab Minciu Sodas is a founding member of the European Union’s thematic network COMMUNIA for the Public Domain. I’m proposing to organize the April 2008 workshop in Vilnius on the topic of Ethical Public Domain: Debate of Questionable Practices. http://groups.yahoo.com/group/learningfromeachother/message/1166 These are very much the kinds of issues that it would be great to hash out.

  3. This seems like a fairly generous interpretation of Google’s position. My suspicion is that their position is nearly impossible (they are going to be hit by the owners/publishers unless they align themselves wholly with the narrowest view of fair use) and their buinsess model is going to encourage the in-house lawyers to take an increasingly narrow view of fair use. Establishing the appropriate extent of fair use is (one can agree) not something that can be embodied in an algorithmic test. I doubt that it can be established by the considered views of in-hours lawyers. Google is ultimately going to have to choose between being a content owner and being the search engine…..The varying and incompatible terms for copyright (author’s/composer’s death+50 in some countires +70 in others) is another area where Google is going to find it very hard to manage the problem of opposed views on what is fair and right. Its this problem and the varying laws on fair use which make Google Book Search less useful in the EU than it is in the USA. A can of worms, but my reading of the Google announcements about its filtering technology was that this is going to push them to an increasingly narrow and rigid view on ‘fair use’. Publishers and authors (and collecting societies) need to get into the position of recognising that fair use is in everyone’s interest. Especially necessary for a critical and evolving literary culture…..

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  5. Hey, this was a great post. Really informative. I bookmarked it, and will definitely be coming back. :D

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