RE: Your Lawsuit is Not Helping Me or My Book

["Stuivenga, Will" <wstuivenga@secstate.wa.gov>]

This is a fascinating thread. Sally says that the question is: "does
copyright permit" what Google wants to do. The answer to that question in
the United States is determined first by the law (written by Congress),
and its interpretation (adjudicated by the courts.)

What Google intends to do may well fall within the spirit of fair use, but
at the same time may end up being denied by the courts, which
unfortunately, are almost as contaminated by corporate interests and money
as were the politicians who appointed them (the jurists in question).
(From that remark you can gather that I, like Lawrence Lessig, think the
US Supreme Court decided the Eldred vs. Ashcroft case which upheld
Congress' latest 20-year extension of copyright incorrectly and contrary
to the spirit of the constitution as quoted by Peter below.)

Consider software copyright. It is impossible to use a software program
without technically creating an electronic "copy" on one's computer. It
should be obvious that this kind of copying was not what the founders had
in mind when they established copyrights.

Google's copying to create an index could (and perhaps should) be regarded
as analogous to this type of copying. It is NOT the intent to create a
copy which substitutes for or replaces the original, or which reduces the
commercial value of the original copyright holder in any way. In fact, it
almost certainly enhances (possibly substantially) the original copyright
holder's value. In this way it could be argued to be well within the
guidelines for "fair use" as established by US law, and no violation of US
copyright.

The provision by Google of electronic copies to the libraries which are
supplying the printed books for scanning is another issue, and trickier.
Here one might argue that the analogy is with the right to create archival
or backup copies of software as allowed under fair use, but I concede that
this is a more difficult case to make.

I'm no lawyer either, just someone who's been interested in copyright from
various perspectives for a number of years. Ultimately, the courts will
decide the issue, correctly or not, depending on your point of view.

Will Stuivenga <wstuivenga@secstate.wa.gov>
Statewide Database Licensing (SDL) Project Manager
Washington State Library Division,
Office of the Secretary of State
http://www.secstate.wa.gov/library/libraries/projects/sdl/

Letters About Literature:
A national writing contest for kids:
http://www.secstate.wa.gov/library/lal/

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-----Original Message-----
From: owner-liblicense-l@lists.yale.edu
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Peter Banks
Sent: Monday, November 07, 2005 3:55 PM
To: velteropvonleyden@btinternet.com; liblicense-l@lists.yale.edu
Subject: Re: Your Lawsuit is Not Helping Me or My Book

Jan:

Intresting that you see the interests of society and the interests of
creative individuals as opposed and in need of balancing.

Article 1, Section 8, of the US Constitution argues that the temporary
protection of a creator's interests and society's interests are one,
since it grants Congress the right, "To promote the Progress of Science
and useful Arts, by securing for limited Times to Authors and Inventors
the exclusive Right to their respective Writings and Discoveries."

Peter Banks
Acting Vice President for Publications/Publisher
American Diabetes Association
Email: pbanks@diabetes.org

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>>> velteropvonleyden@btinternet.com 11/01/05 9:44 PM >>>

Copyright law is a construct conceived to create a balance between the
interests of society and those of the creative individual. Benefits do
count. That was the whole premise of copyright law. Wouldn't it be sad
if we lose sight of the spirit of the law and focus on the letter? If
current copyright law is not concerned with the balance of benefits any
longer, it needs to change. Literalism is a great problem for the world
(and not just in law, I might add).

Jan Velterop