THE STRATEGIC LAWYER + + + politics.::. get the jist.::

Red Herrings and Copywrongs

You’ve probably encountered Google Books, if only during the course of an online search for a text. In its early days, the better parts of entire books were online and available for perusal. Now, availability has been scaled back somewhat, but nonetheless, Google has a massive library of books sitting quietly on its servers in a series of warehouses somewhere.

In scanning in all these millions of books, Google has essentially thumbed its nose at copyright in a fundamental way. The chutzpah of such an act tellingly brings out the fault lines of the current regime that purports to protect the rights of creators (or their assignees and licensees). See, our current regime targets the right to copy, because at one time, copying, distributing and making available on the kind of scale that would threaten revenue were more or less synonymous. If you wanted to distribute books or artworks and make money off that pastime, you’d have to copy the works. Similarly, making a single copy available for use would have a limited impact on sales–only one person could use the copy at a time, and each person would have to take his or her turn.

That shifted with intermediate technologies like photocopiers, but it was only with the infinite, lossless reproducibility of works via digital formats that the game truly changed. And now, the question of what precisely is a problematically infringing act–that of copying, of distributing or of making available–is key.

Google began copying the books under fair use, which allows for copying if the copy is made for certain purposes like education–they were scanning the books in order to help libraries digitize their collections. That act, of scanning books and storing them electronically, was deemed to be protected. And suddenly, Google had a whole lot of books in that lossless, infinitely reproducible format. The point of “infringement”–copying–had been legitimized through fair use. What readers were finding online were simply versions of the text being made available. No copying here.

So let’s look a little more closely at this whole “being made available” concept. Display on a browser means that the source version of the document wasn’t being copied, per se, right? The server on which the original resided was just transmitting the text to the browser for reading. But of course, in order for this to happen, the very rendering of a web page requires the generation of a copy. If it didn’t then the source file would have to be sent to your browser, and no-one else would be able to access that content so long as yo were looking at that web page. And we all know the Internet doesn’t work that way.

But if that is so, then the very act of accessing any work online would technically be an act of infringement of the creator’s copyright, right? We’re all copyright infringers by that reasoning, and we need to cease and desist using the internet (which also happens to be the most expeditious and inexpensive way for creators to get their work “out there” in the first place).

Obviously, that’s not going to happen.

So instead, in order to protect this whole “copyright” paradigm, a fiction or conceit has emerged which posits that even though technically speaking, every page we load is in fact, a copy, for the purposes of copyright, we’re not going to call it that. So it’s okay to copy in that context.

This in turn begs the question: so if we’re not protecting what is probably the most common form of copying in a wired society, then what are we protecting with this whole “right to copy” concept?

Basically, we’re the right to move that work from the copy we have in our browser, to any other place. That’s it. It’s fine to have it on a web page, but if we cut and paste it into MS Word, then we’re technically infringing (though no-one will find out and it would be impossible to enforce this). Looked at it from that perspective, it seems absurd and arbitrary. Why is one kind of copying okay while another kind of copying, even if it’s for exactly the same purpose (e.g. reading an article at your convenience), is suddenly wrong?

A likely-seeming answer is that once you take it out of the browser and put it in MS Word, you suddenly have a format that you can save and then easily redistribute, potentially without any acknowledgement of the author (leave alone any compensation to him or her). So the browser-based copying is okay, because it’s done in such a way that the author or rights holder can track access, and benefit in some relevant way (by showing you ads, or by being able to count your reading as a “page view” or even by charging you, on subscription-only sites), then you’re golden. By the same token, the MS Word copy is not okay because of the absence of those corollary effects.

And this gets at the whole problem with focusing on the act of copying in the digital age. It’s imprecise. If you go to the site (so it gets its page hits, or satisfies the advertisers or whatever), copy the passage and paste it in Word in order to read while offline, and don’t redistribute it or do anything else, that doesn’t make your act of copying less wrong, at law.

The reality though, is that copying isn’t the problem–it’s the making available of that copy that’s the issue, be it via distribution or display. Similarly, the fact that Google was able to make all those copies under the exception to copyright called fair use isn’t the real problem. If those books sat around on Google’s servers doing nothing, no-one would care. The issue is what Google plans to do with those copies, and how those plans have the potential to infringe on the spectrum of potential benefits that would otherwise accrue to the rights holders.

Regardless of where you land on the rights-protection spectrum, be it pro-user or pro-creator, it seems to me that in order to have a more useful discussion about what is actually going on in the digital landscape, the debate needs to be reframed. It’s difficult to discuss, with any accuracy, what is necessary to protect the benefits of the creator, or to facilitate the benefits of the user, if we’re being misled into focussing on the red herring that is copying, when in fact the problem is access.


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This entry was posted on October 20, 2012 by in Copyright, DRM/TPM, Licensing and tagged , , , , .
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