When copying doesn’t violate copyright

When an airplane flies over someone’s private property, is that trespassing?

From our perch at the dawn of the 21st century, the answer is obviously “no.” But the answer wasn’t always so obvious. As Stanford’s Lawrence Lessig tells the tale in his excellent book, Free Culture, the question was a subject of active debate at the turn of the last century.

The Supreme Court addressed the question in a 1946 case involving North Carolina chicken farmers who charged that low-flying aircraft from a nearby military base had destroyed the viability of their farm. Justice Douglas was sympathetic to the farmers’ claims–the flights were a genuine nuisance–but he tersely dispatched the notion that merely flying over someone’s land could be trespass:

It is ancient doctrine that at common law ownership of the land extended to the periphery of the universe. But that doctrine has no place in the modern world. The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea.

Prior to the 20th century, the law was ambiguous. It was perfectly logical to argue that land ownership extended “to the periphery of the universe,” but it didn’t much matter because no one could get to the heavens. The invention of the airplane brought the question into sharp focus, forcing Congress and the courts to deal explicitly with the issue. Technological change forced us to refine our conception of property rights.

So here’s another question that, until now, has been ambiguous: is it copyright infringement to make a digital copy of a book that no human being will ever see? That’s the question raised by a lawsuit filed last week by the Authors Guild against Google for its Google Print service.

Google has shown extraordinary care to respect the rights of copyright holders. When users search for books, Google Print shows only a couple of sentences surrounding the user’s search term, far too little to be of any use to a reader hoping to get the book for free. And if a search term appears in a book more than three times, Google Print will show only three excerpts, preventing users from piecing the book together from multiple excerpts. Finally, publishers are free to opt out entirely if they choose.

Like the invention of the airplane, the development of services like Google Print is bringing a legal ambiguity into sharp focus: does copyright infringement involve creating an unauthorized copy, or accessing that copy once created? Before the invention of computers, the question would have been silly. The only reason anyone would make an old-fashioned copy of a book was in order to read it, or perhaps to let someone else read it. A prohibition on unauthorized copying was equivalent to a prohibition on unauthorized use.

If copying, as such, is copyright infringement, then Google Print is illegal. But in that case, so are many other technologies that have become everyday parts of our lives. Copying is what computers do.

Take the web. Every time a web page is loaded, more than a dozen copies of the page are created on Internet routers as they pass the page’s contents across the Internet. The web page might be copyrighted content that only the recipient has permission to read, yet dozens of ISPs and telecom companies make copies, at least temporarily, on their hardware. But of course, no one thinks that’s a problem because no one ever sees them–they remain as ones and zeros in a computer’s memory.

Or consider an MP3 player. To load a song from a CD to an MP3 player typically requires the creation of two unauthorized copies. The first is stored on the user’s hard drive, and the second on the MP3 player itself. If merely copying were illegal, every MP3 player would be a piracy device. But in this case, too, the important point is that the only person listening to the song is the person who, we hope, was the legal owner of the CD from which he “ripped” the song.

In the physical world, “accessing” content is easy (requiring only your eyes or ears) while “copying” it is hard (requiring a photocopier or tape recorder). Therefore, it made sense to make laws restricting copying. But with digital technology, copying is a pre-condition of access. A prohibition on unauthorized copying is a prohibition on any unauthorized use–even uses that might otherwise be perfectly legal.

The publishers insist that Google must ask their permission before indexing their books, but that would create tremendous practical difficulties. It’s often impractical to locate the copyright holder for an out-of-print or obscure book, and the time and effort required to track down and negotiate with hundreds of thousands of authors would make the cost of the scanning process astronomical. At a minimum, a ruling against Google will greatly reduce the number of books the company is able to index. It might even prompt Google to shelve the service altogether.

That would be a great loss all by itself, but the case has broader implications as well. The next generation of high-tech innovation will give consumers ever more convenient ways to find, organize, and manipulate information. If the law requires creators of those tools to track down and ask each and every copyright holder for permission before it can even access copyrighted content, that will make many such tools prohibitively labor-intensive. Given that innovative services are often created by startup companies with limited capital, that means that many such services will never even get off the ground.

If the courts had insisted that airplanes must get permission before crossing peoples’ property, it would have crippled the airline industry. Airlines would have needed an army of lawyers to contact thousands of property owners and ask for their permission to fly over their land. Air travel might still have been possible, but tickets would have been far more expensive. A ruling against Google in this case would have a similar impact on Google Print and other services that will follow in its footsteps. Digitizing a book, album, or movie is cheap, and getting cheaper. Finding a book’s owner and negotiating a contract with him involves hiring a lawyer, is expensive and will only get more so. Finding the people who own the copyright to hundreds of thousands of out-of-print books would take years and cost millions of dollars. In the words of Justice Douglas, common sense revolts at the idea.

On the other hand, a ruling for Google wouldn’t undermine the rights of authors to be compensated for their work. Google Print merely allows users to locate books. If they want to actually read the books they find, they will still have to purchase them from publishers or check them out from the library. The courts should rule that copying, as such, is not sufficient do constitute copyright infringement. And they should clearly distinguish between responsible services like Google Print, which preserves the rights of authors to profit from their creations and might even enhance the market for their products, and irresponsible services like Grokster, which attempt to profit from piracy and undermine authors’ ability to profit from their creations. That will ensure that the high-flying technologies of the 21st century have the chance to be every bit as revolutionary as those of the 20th.

Tim Lee is the science and technology editor of Brainwash and the editor at the Show-Me Institute, a Missouri think tank. His website is www.binarybits.org.

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