thinking is dangerous

Generic Lawyer Joke

Ars Technica reports on a lawyer looking for an easy case against Google. he had the bright idea of writing a bunch of random thoughts like the following:

The Smoke Detector
I'm so worried about it being a voyeur camera
that whenever I return home, I take it down from
the wall, pry it open, and carefully inspect its
constituent parts. It might be an unreasonable
thing to think or do, but it's the only way I can
get to sleep after I've been out.

Truth is, even sometimes when I've not been gone
I re-check the smoke detector just to make double
sure I didn't miss anything the last time around.
And, thus far, it's been safe. Not once have I seen
anything remotely looking like a camera part inside
the smoke detector.

But they've gotten good with technology, now. I
probably wouldn't be able to tell, anyway. Tomorrow,
I'm moving that thing to the hallway.

He put it up on his site, and waited for the Google spiders to catalogue his 'work' on their servers, and then sued em for 2.5 mil. The judge who made the ruling sided in favor of Google on all counts, and it would otherwise be an entirely uninteresting case except for the precedent it sets.

From Ars technica: Judge: Google cache kosher when it comes to copyright
The judge ruled that Google could not be held guilty of "direct infringement" because such infringement requires "a volitional act by defendant; automated copying by machines occasioned by others not sufficient." Because Google's indexing is automated and the purpose of the indexing is not generally to infringe upon copyright, the judge ruled that they could not be held liable.

You can read the entire decision here (PDF). Its short and worth the read.

Two important claims are being made: that Google as an automated system is independent of the corporation that runs Google (and thus the actions of the automated system do not represent the volitions of the company), and that the automation itself does not constitute a volitional act.

Notable sections of the decision:

The parties do not dispute that Field owns the copyrighted works subject to this action. The parties do dispute whether by allowing access to copyrighted works through "Cached" links Google engages in volitional "copying" or "distribution" under the Copyright Act sufficient to establish a prima facie case for copyright infringement...

According to Field, Google itself is creating and distributing copies of his works. But when a user requests a Web page contained in the Google cache by clicking on a "Cached" link, it is the user, not Google, who creates and downloads a copy of the cached Web page. Google is passive in this process. Google's computers respond automatically to the user's request. Without the user's request, the copy would not be created and sent to the user, and the alleged infringement at issue in this case would not occur. The automated, non-volitional conduct by Google in response to a user's request does not constitute direct infringement under the Copyright Act.

This is all important because of the lawsuit against Google Print, which catalogues books online. The key is whether such copying and pasting constitutes 'fair use'; in this case, the court upheld Google's claim that it does.

Assuming that Field intended his copyrighted works to serve an artistic function to enrich and entertain others as he claims, Google's presentation of "Cached" links to the copyrighted works at issue here does not serve the same functions. For a variety of reasons, the "Cached" links "add[] something new" and do not merely supersede the original work.

Because Google serves different and socially important purposes in offering access to copyrighted works through "Cached" links and does not merely supersede the objectives of the original creations, the Court concludes that Google's alleged copying and distribution of Field's Web pages containing copyrighted works was transformative.

When a use is found to be transformative, the "commercial" nature of the use is of less importance in analyzing the first fair use factor... While Google is a for-profit corporation, there is no evidence Google profited in any way by the use of any of Field's works. Rather, Field's works were among billions of works in Google's database. Moreover, when a user accesses a page via Google's "Cached" links, Google displays no advertising to the user, and does not otherwise offer a commercial transaction to the user... The fact that Google is a commercial operation is of only minor relevance in the fair use analysis.

This is all very good news that rests of a very shoddy theory of agency.
13:02 :: :: eripsa :: permalink