Are search engines illegal? The challenge of accessing copyrighted material under fair use and how it impacts our education.January 22nd, 2006 | by ian |
Following the debate on fair use is a great way to dive into information economics. We all know and love that various kinds of media (audio, video, print…) are used to create songs, movies and books (or more generally “works”). These information creations are economically important as they are often targeted at a specific market for profit or at least sold to cover the costs of production. Copyright law is designed to incent the creation of new works by legally restricting the ways in which we use them – for example I am allowed to quote a passage from a book I bought without getting permission, but I can’t photocopy large portions of the book to distribute them (without permission) since I might put the author out of a job – and that isn’t good for the creator or the consumer.
Modern technology makes it very easy to copy someone else’s work and even easier to distribute it, leading to the controversy about peer-to-peer software which rights holders blame for not making as much money as they think they should. This concern has prompted the rights holders to adopt yet another class of technologies called Digital Rights Management or DRM which are as fatally flawed as the reasoning behind banning peer-to-peer networks and making ISPs liable for illegal activities on the internet.
Lawrence Lessig‘s engaging (as usual) presentation on the Google Print debate (now called “Google Book Search“) makes an extremely interesting point: If Google either needs to obtain the permission of the rights holders before indexing their works or is not allowed to profit from such indexing, as the Author’s Guild and the publishers contend in separate lawsuits, then search engines are not a legal business model (since they index copyrighted content on the internet without permission and profit from their ability to provide links to that content in search results). This would be a pretty big deal indeed but please don’t panic – it would appear that Lessig has some compelling arguments why search engines such as this book search would fall under “fair use” which doesn’t require permission and can be the basis of profitable ventures. Fair use protects my ability to use small portions of a work for critical purposes, or create derivative works including parodies which are an important tool for social commentary. Fair use would allow me to publish some favorite quotations. I’m no constitutional expert but I find it unlikely that democracy can work effectively without fair use since criticism relies on use of original materials for full effect.
Therefore, assuming that the Google Book Search service will conform legally to the fair use doctrine as would appear to be the case, there is no reason to require Google to (1) obtain permission to include books (2) not profit from the service. This assumes of course that all the materials indexed are legally acquired – in this case all of the books are the property of research libraries who are allowing Google to perform the indexing.
So what’s going on here, why the debate?
It would appear that the right to fair use is being undermined by folks who don’t care that copyright doesn’t work in a free and democratic society unless there is a balance between the rights of the creators and the rights of the consumers. Furthermore it would appear that these “folks” who I am singling out are predominately rights holders eager to preserve the lucrative status quo, despite the strong likelihood that they may stand to gain significantly from projects such as Google Book Search. The most reliable method I use to find many of the books that I purchase is to search through the content. Typically this is a time consuming manual process at a bookstore. Amazon‘s metadata is useful but their taxonomy can be limiting and many books of interest never show up in my searches.
There is a larger issue than my selfish desire to build my own library: how can we ensure a depth and richness of education if the restrictions of fair use render educators and creators unable to access and use the bulk of published works? The position of both the the author’s guild and the association of publishers strike me as fundamentally opposed to encouraging and promoting education. The Author’s Guild and the Association of Publishers need to educate themselves before they create restrictions which both harm society and our ability to find the books we are looking for.