Disqus - Friends of Adam_Thierer

Re: Now I'm Cooler Than You

Jerry Brito — Sun, 06 Jul 2003 10:12:00 -0000

I'm shocked that you voluntarily sent off for a government identification number and that you are proud of it. How far we have come. :o) -JB

Re: Retarding the Progress of Science and the Useful Arts

Jerry Brito — Fri, 09 Sep 2005 09:21:46 -0000

"But now, when such a search engine is becoming technologically feasible, it looks like it's going to be thwarted by the lawyers."

If Google wins in court, will you say that the project was "saved by lawyers"?

Re: More on Google Print

Jerry Brito — Sun, 25 Sep 2005 17:29:16 -0000

Tim, Rather than write another dueling post on the blog, I'll address this here in the comments section.

First, you're right; a parody is technically a derivative work. But the larger point I was making is that a parody will never substitute for an original or a conventional derivative, such as a translation or a film adaptation. Thus it will never have an effect on the market for the original or conventional derivatives. Parodies, therefore, will never have a tough time with the fourth factor. It is clear that fair use was developed for things like parody that cannot substitute for, or compete with, the original and at the same time create lots of new social value. In such cases, we don't see any societal gain in allowing the copyright holder to prevent such a use.

Second, I'm afraid that a positive market impact for the original is in fact irrelevant. UMG v. MP3 was cited approvingly on this point in the Napster case. Also, the Supremes said in Harper & Row and again in Cambel v. Acuff-Rose that the enquiry "must take account not only of harm to the original, but also of harm to the market for derivative works."

Copyright law grants creators certain exclusive rights. If you write a book and several studios want to make a movie out of it, you have the right (during the copyright term) to not allow anyone to make the movie. Whether to make the movie or not is your exclusive right. Now, if I go ahead and make the movie anyway and it is a huge hit and as a result you sell three times as many books as you had before the movie, is it a fair use? No. I still violated your exclusive right. Even if Google Print has a wonderful effect on the market for books, this doesn't get them fair use. There is still a negative effect on the market for licensing books to be used in searchable databases.

The question then is--and you put your finger on it--whether there is a market for the derivative work or whether that market is merely hypothetical. In my example above, a market for movies is well known. A court would not focus merely on the original product as you contend--they would look at the market for the derivative work. So, is a market for licensing books for inclusion in searchable databases hypothetical? I would argue that it is not. Amazon.com and Google Print Publisher are two examples of such a market. Lexis and Westlaw are other examples.

All this said, my point, again, is this: In my mind the fourth factor will be the most important. I don't think it's clearly in Google's favor. Like you, I think the courts should follow the lead of Kelly v. Arriba Soft and find that the market for search engine licensing is negligible and outweighed by the great new social value that is being created by Google Print. But to me it's a 50-50 shot at best whether a court will be that enlightened and not simply find that there is a market for licensing that Google is harming.

Re: More on Google Print

Jerry Brito — Fri, 30 Sep 2005 16:40:23 -0000

Yes, Tim. That other principle is called the First Amendment's right to free speech. See, copyright is a constitutionally sanctioned restriction on free speech. If I can't sing a song you wrote because you own the copyright, then my right to free speech is limited. This is a limitation that we're willing to live with (for limited a limited time) in order to give creators an incentive to create. However, there are nevertheless forms of expression that we value so highly that we are willing to let them happen anyway even if they lead to a reduction in copyright's incentives for creativity. These include criticism, comment, scholarship, research, news reporting and teaching. There are markets for all of these, but the courts--per statute--distinguish these as fair use.

Like I've said before, I think the fact that Google is a commercial venture shouldn't blind the courts so that they don't see what a huge boon Google Print will be to (non-commercial) scholarship, teaching, news reporting, etc. I think the way it's structured now, Google Print should definitely be considered fair use and allowed. But, I'm not sure this will be crystal clear to courts.

Re: Variable price fixing?

Jerry Brito — Sat, 01 Oct 2005 15:19:34 -0000

I see what you're saying. But like I note, to get true price fixing you'd have to 1) get all the major labels agree to do it, and 2) have them all set a minimum retail price above the competitive price -- sort of what they did in CDs with MAP. If that happened, there would be cause for concern. My only point is that a call for variable pricing does not automatically equate to price fixing.

Re: Fighting Overseas IP Piracy with Price Discrimination: Will It Work?

Jerry Brito — Tue, 04 Oct 2005 10:48:31 -0000

Actually, importing these DVDs would be illegal under Section 602 of the Copyright Act. See http://www.copyright.gov/ti...

Re: Fisking a Google Critic

Jerry Brito — Fri, 04 Nov 2005 09:11:04 -0000

Tim, You say that "The important question raised by the case, which hasn't been decisively answered before, is whether it's a violation of copyright to copy but not distribute a copyrighted work." I thought copying alone was pretty clearly an exclusive right of a copyright holder? See 17 USC Ã?ÃÂ§ 106.

Distribution to the public is also an exclusive right. As a general matter, you can violate it by distributing without authorization someone else's copyrighted work -- whether it's a whole book or just a little bit of it. If you can successfully defend what you're doing under fair use, then you won't be liable for infringement. But, there's no denying that you are still distributing someone else's copyrighted work. So, Nimmer is right to make the statement that Google will be distributing someone else's copyrighted works. There's no denying that that is what Google will be doing. The question is whether it constitutes an infringement or not; whether it can be defended successfully as fair use or not.

You say, "Google Print doesn't distribute copyrighted books, aside from displaying small snippets that are generally agreed to be fair use." However, I'm not sure that there is general agreement that short snippets always qualify as fair use (especially when Nimmer, one of the foremost experts in the field doesn't agree). For one thing, what determines fair use is a multi-part, contextual test. So I'm not sure anyone can give an opinion about whether something is fair use based only on the quantity of the copy distributed.

Lots of folks seem to be arguing that this is an open and shut win for Google under existing fair use precedent. As someone who would like to see Google Print qualify as fair use, I think we have to be realistic about the fact that fair use as it is right now gives Google Print at best a 50-50 shot. We have to make the case that fair use can logically be extended--given its traditional purpose--to encompass Google Print. GP will--hopefully and rightly--push out the bounds of fair use to take into account new technology (i.e. the network), but fighting this fight within the existing parameters might be a losing proposition.

Re: Fisking a Google Critic

Jerry Brito — Fri, 04 Nov 2005 10:58:47 -0000

Tim, In your robot example, it might well be the case that the users of the service are making fair use of the copyrighted material. However, I don't think that everyone would agree that Google and its robots are engaging in fair use. Your example is a lot like Penguin Publishing v. Kinko's. There professors told Kinko's what book excerpts they were going to assign to a class. Kinko's got the books, copied the excerpts, bound them together in a nice package, and sold them to students. If the students had gone to the library and copied and bound their own course packets this would very likely have fallen into the fair use exemption (under classroom use). However, the commercial middleman was not allowed to claim fair use. Google is a commercial middleman. Do I think the conception of fair use should be stretched (i.e. that a court should give less weight to the commercial prong in this case)? Yes, I do. Is it obvious that it will? No.

You're right that Nimmer might be missing the point of Google Print and might be making it sound nefarious. But the bottom line is that Google is "distributing" "massive numbers of copies of other persons' property" "with impunity." You can't only look at the quantity of what is being distributed. (Sure, it's just a snippet, and the third prong of fair use will weigh in favor of Google.) You have to also look at the other prongs of the test. Those include the first prong, whether the use is commercial (which it is), and the fourth prong, "the effect of the use upon the potential market for or value of the copyrighted work." Especially now that Amazon has announced a pay-for-pages program I don't see how one can argue there isn't a market for this kind of licensing. You say, "Book reviewers, journalists, bloggers, and others have been 'distributing' other peoples' works for decades." Yes, but for purposes that don't affect the market for the original and that are explicitly mentioned in the statute as allowed.

Re: Fisking a Google Critic

Jerry Brito — Fri, 04 Nov 2005 14:17:31 -0000

Now you're talking, Tim! That's where I think we should move the debate. The court in Arriba Soft wasn't blinded by the fact that the service provider was a commercial entity. It focused (rightly) on "the public benefit of the search engine and the minimal loss of integrity to Kelly's images"--even if that service is being provided by a for-profit corporation.

Does Google profit when they offer this service? Probably yes. (I, for one, don't think corporations do anything--especially of this magnitude--altruistically.) Although they do not display ads in the snippets pages, ads are displayed in the search results page. Also, providing this service draws users to Google's Print service generally where there are pages with ads. It therefore wouldn't be unthinkable for a court to find that Google is profiting by using the copied works. What we need to argue is not that Google is not profiting, but that even if it is it should still be found to be a fair use because, as in Arriba, "the public benefit of the search engine" is great. That is, we need to make courts focus not on the commercial middleman, but on the fair use that the individuals using the service are making. We can't do this by denying that the middleman is commercial.

How is a thumbnail different? First, folks who put up pictures and text on the web are tacitly accepting that their content will be indexed (and copied whenever it is accessed); book publishers, on the other hand, don't put their content on the web. Second, there is no market for thumbnails. Is there a market in this case? That depends on how you define the market, but I think the answer is yes. If you define it broadly--is there a market for licenses to permit copyrighted work to be included in searchable databases?--the answer is likely yes. Look as Amazon Pages and Search Inside the Book, Lexis, Westlaw, etc. But even if the market is defined more narrowly--is there a market for licensing to allow snippets--the answer may well still be yes. You have to look no further than Google's own Print Publisher program.

That last prong is going to be the hardest to get around. We're going to have to convince a court--if it is the case--that without a fair use designation a market will never provide the kind of "universal service" (I can't believe I'm using that term, and it gives me pause) that a Google Print can supply--even if it harms a potential market for licensing. We have to convince a court that the same way we don't countenance a market for licenses to quote excerpts in book reviews (even though such a market is conceivable), the type of copying that Google Print plans to do should be allowed despite the possible existence of a licensing market because the social benefit that would otherwise be lost outweighs any interest in preserving publisher rights. You don't do this by denying that there is a market for licensing snippets.

Re: Fisking a Google Critic

Jerry Brito — Fri, 04 Nov 2005 20:11:11 -0000

Tim, Regarding the thumbnails, you don't address my point that while content on the web was put there voluntarily with the tacit understanding that it would be indexed, book publishers do no such thing. That alone should be enough to distinguish the Arriba Soft case.

Yes, there might be a hypothetical market for thumbnail licensing, but that's not the point. The point is that there is a very real market for licensing books to use them in the way Google Print will use them.

Yes, The NYT might like to make bloggers license quotes, but it's not allowed not because there isn't a potential market for such licensing but because quoting for criticism and journalism is fair use that is not only explicitly allowed by the statute, but would also easily pass the fair use test. What Google is doing is not even close to be a clear case like that.

I'm aware of the Simpsons example from Lessig's book. But the point of Lessig's argument in that passage wasn't that the 4 second clip should be covered by fair use--because it should be obvious to anyone that it is an instance of fair use--but that users won't make use of a work even if they know they'll qualify for fair use because they can't afford a lawsuit and content companies get away with extracting rents they don't deserve. So, I'm not sure how this is relevant here.

You say, "Your premise seems to me that a copyright holder has a right to exploit every conceivable derivative market for his work, no matter how tenuous, unless some kind of utilitarian calculus shows that doing so harms society." That's not exactly what I'm saying. But I am saying that if a utilitarian calculus shows a great benefit to society that only marginally harms copyright holders, then that should be considered fair use. And by making that showing is how I think Google can win.

What I'm saying fits squarely with precedent. The section you quote from Sony buttresses my argument. You quoted: "In the Sony Betamax decision, the court held that 'there is no likelihood that time-shifting would cause nonminimal harm to the potential market for, or the value of, respondents' copyrighted works.'" Notice that the court was careful to include in its opinion the "potential market". That's because the statute includes potential markets in the equation. Courts have followed the statute and looked at a potential market. You go on to say, "It didn't consider whether the VCR harmed a hypothetical market for time shifting licenses." It did. It sounds absurd to think of "time shifting licenses," as if one would call up MGM and buy permission from them to record a show so you can watch it later. But that is what DVDs and VHS tapes are. What the film industry wanted was to make VCRs play-only with no record button. In that world, if channel 10 was playing Jaws Tuesday at 8 pm, but you wanted to watch it on Saturday, you would have to go to the store and buy the VHS tape to do so--in effect licensing time-shifting. Was this potential market harmed? Yes. Did the court consider this? You bet. Was this harm "minimal" and outweighed by an incredible gain in social welfare? Yes, and that's why the copyright holder's copyright should yield.

Re: Is the FCC getting desperate?

Jerry Brito — Fri, 20 Jan 2006 09:29:35 -0000

James, Thanks for pointing this out. From reading the NPRM, however, it's impossible to tell that's what they meant. In the sentence before they mention Ã?ÃÂ§ 706 they refer to Ã?ÃÂ§ 621(a)(1) of the 1934 Act. In fact, every mention of a statutory section before Ã?ÃÂ§ 706 is in reference to the 1934 Act. So, it's disconcerting that they suddenly say 'Do we have Authority under Ã?ÃÂ§ 706?" and don't bother to say they mean to reference the 1996 Act and not the 34 Act generally. I guess it's just jargon and they expect everyone to know what 706 means. -Jerry

Re: Study: Franchising costs consumers over $10 billion annually

Jerry Brito — Tue, 14 Feb 2006 17:28:27 -0000

Thanks, Wonk. This is exactly the kind of incisive feedback I like to get when I post here. Say hi to Dick Armey for me.

Re: A Few Snooty Words about Technological Etiquette

Jerry Brito — Thu, 02 Mar 2006 09:11:12 -0000

From Political Wire: It's fairly obvious that Rep. Bobby Jindal (R-LA) will not be giving up his cell phone for Lent. According to Roll Call, while celebrating an Ash Wednesday ceremony at St. Peter's Catholic Church, the Congressman "spent a great deal of time on his BlackBerry during service and prayer, both reading emails and sending emails."

Said the informant: "I guess Rep. Jindal couldn't sacrifice his BlackBerry for God

Re: French Not So Sensible After All?

Jerry Brito — Tue, 21 Mar 2006 14:43:59 -0000

Tim, You're assuming that in France there is a DMCA equivalent that prohibits circumvention and to which this new law is aimed. Do you know if that's the case? If not, then maybe circumvention for fair use purposes was perfectly legal and this new law is even worse than we imagine since it's not really solving a problem. -JB

Re: Who’s your daddy?

Jerry Brito — Tue, 28 Mar 2006 16:56:59 -0000

I agree that registration would be the most sure-fire way to ensure that works don't become orphans. However, adopting registration would require the U.S. to pull out of the Berne Convention and other international treaties. That's not going to happen. What we aimed to do was provide a politically feasible solution.

There might never be a completely clear legal definition of what qualifies as a reasonable search, but there can certainly be a definition that is good enough. There is no metaphysically certain definition of what a reasonable person would do in negligence, but we manage to apply that standard successfully every day.

Re: Piracy as trade retaliation

Jerry Brito — Wed, 05 Apr 2006 09:50:05 -0000

Tim, I agree about my.mp3.com. The point I'm making, though, is that given the district court ruling, such a space-shifting system is in a legal grey area, whether we think it should be or not. That's why we haven't seen the resurgence of another such service, because potential new entrants know they would have to fight it in court. So, for all intents and purposes, it's a banned business model in the U.S. Antigua could put it up no problem if it chooses to go the IP retaliation route. -JB

Re: Google grows up

Jerry Brito — Mon, 01 May 2006 10:09:53 -0000

Actually, Google invested $1 billion in AOL and in return got to stay as its default search engine. Opera used to cost $39, but Google struck a deal with them that made the browser free and put Google in the search box. The Mozilla Foundation apparently gets about $30 million a year from Google ad revenue, and I would be surprised if Apple didn't get a slice, too.

Re: New full-text RSS feed

Jerry Brito — Thu, 04 May 2006 10:34:40 -0000

EPC- Thanks for the RSD note, I'll remove it.

Roland- Our full-text Atom feed has only been around for a few months and it's been hidden (you were probably smart enough to discover it on your own). Most of our subscribers are on the partial text RSS 1.0 feed, so this is an upgrade for them. Feedburner is a great service that adds many great features to our feeds without much effort. It's also easier for our less-technical contributors to use. Even though it's not a standard and doesn't validate completely, I've never known a reader not to display a Feedburner feed properly. So, it's a good fit for us. Thanks for your comments!

Re: Steve 2, RIAA 0

Jerry Brito — Thu, 04 May 2006 13:58:18 -0000

Tim, you will admit that some songs are worth more than others, and that some songs are worth much more than 99Ã?ÃÂ¢, right? If so, I have a question. If iTunes tracks ever stop being a loss leader to sell iPods, won't Apple have every incentive to do variable pricing? The iPod's success doesn't have to disappear for this to happen. Once they obtain sufficient lock-in, as you suggest, so that the iPod is so entrenched as the standard that they can worry less about ensuring its continued sales, why wouldn't Apple switch to variable pricing, which will probably result in higher revenues?

Re: Google grows up

Jerry Brito — Sat, 06 May 2006 10:30:29 -0000

We won't let you what? From what I read in the article I linked to above end users and computer manufacturers will be able to set the IE7 default to whatever they want.

Re: This one’s not an urban legend

Jerry Brito — Mon, 08 May 2006 10:07:06 -0000

Mike, That last question is a good one. Why is it that anyone would take seriously superficial arguments? Why would I or Tim or other busy people take the time to address these arguments? I often wonder that myself.

I think there might be a couple of reasons. First, a group like PFF does good work, and makes sound arguments, on many other issues. So, they can't just be ignored. An uncritical audience might accept their arguments about intellectual property because they rightly respect their authority on other issues.

Second, I have no doubt that Jim DeLong makes his arguments sincerely and that he believes them wholeheartedly. However, his IP arguments can be seized by less principled interests groups to advance their causes. And, because of DeLong's earned eminence on other issues, he can be credibly cited. In Washington it's often not about who has the best argument, but who has the most support--something that can more easily be tallied.

So, while some arguments might be obviously fallacious, it might still be worth answering them to hopefully brake any traction they might muster.

Re: The RFID cookie monster

Jerry Brito — Mon, 08 May 2006 14:42:45 -0000

I'm not sure exactly how they work, but there are tag-killing devices that zap them and deactivate them. There has been proposed legislation in a couple of states, including California, that would require all retailers to zap tags before they left the store. If tags replace UPC codes on all goods, imagine what such a mandate would do to small mom-and-pop stores and bodegas.

Re: Consistency Problems?

Jerry Brito — Mon, 22 May 2006 10:44:45 -0000

Tim, You keep banging out the easy and fun posts before any of us can get to them first. Give us a chance, will you. ;o)

Seriously, Jim is absolutely right. Lessig needs to check his first principles. Lessig says, "FU and NN are both 'government regulations' -- each government defined limits on government granted property rights." Intellectual property is a government-granted property right because without a grant from government you wouldn't have any right to exclude me from using your ideas. On the other hand, rights over tangible property, such as network infrastructure, do not derive from the good grace of government. In fact, government exists (or should) to protect those private rights.

So, there is nothing inconsistent about favoring limits to IP rights, but not to tangible property rights. That some believe that we enjoy property rights only because government allows us is telling of their first principles.

Re: More on Ross’s Broken Windows

Jerry Brito — Fri, 02 Jun 2006 12:06:48 -0000

Tim, I don't think Patrick ever said, as you now paraphrase him, "that Wikipedia doesn't contribute to the economy". He said it doesn't "contribute in any meaningful way". A better way of saying that might have been that it's contribution isn't as high as the extraordinary value that Benkler places on it.

I'm curious, though, apart from that one sentence, do you agree with Patrick's greater point that Benkler is (wrongly) using different valuation models depending of what's convenient to him? What about Benkler's social production ideas?

Re: The Washington Post Opposes Net Regulation

Jerry Brito — Tue, 13 Jun 2006 16:33:34 -0000

It may well be the case that the FCC's study was flawed and that 60% of consumers don't have four broadband options. But where is the study that shows that "the vast majority have two or fewer"? The negation of one does not necessarily mean the other. Also, I keep reading that we have an uncompetitive duopoly, but I've never seen Mike Masnick or anyone else provide hard data to suggest that most broadband customers couldn't simply switch to another broadband provider if they didn't like the service they were getting. The duopoly charge implies that even though there are two choices, they're not competing with each other, and if one blocks Vonage, the other would, too, which suggests some kind of crazy collusion. I just don't see it, and I don't think I can accept the notion that the broadband market is uncompetitive based solely on anecdotal evidence.