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Old 06-05-2020, 10:38 AM   #17
fjtorres
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Quote:
Originally Posted by Quoth View Post
Except Google IS indexing the entire book and what they are doing is far beyond fair use. It's possible to download the entire book, because unlike a snippet for a review, quote or research work, the entire work is indexed and live on their servers, completely. Stupidly they also seem to use features of the client's browser. Google misrepresented what they are doing as Fair use as they are monetising the entire text with their search engine.
No, by American law making a derivative is not by itself a crime. Particularly when it in no way diminishes the market for the original or directly competes with it. There is nothing wrong with monetizing the entire text, off-camera, as it were. The crime is, again, *distributing*.

(You familiar with "Clean Room" reverse engineering of software? Done right it is legal. There, Google didn't do it right. Different case. And they rightly lost.)

What you are used to seeing in copyright and fair dealing is not how copyright and fair use work on this side of the pond.
It has to do with the rationale for copyright on both sides.

Euro copyright is about enriching creators for their work. They create, they get paid. Period.

American copyright is about encouraging creation for the common good. It's Constitutionally established, too. The temporary monopoly on the product is just a means to that end. As a legal corollary, the Fair Use framework has naturally emerged from that intent and with it, over time, its four legal tests pointed out above.

Is google monetizing other people's creations? Yes, but they're not competing with them, taking sales and money away from them in any way. Instead they are taking the existing content and they are creating something new, something entirely different for an entirely *different* purpose.

That is *exactly* what Fair Use is for. It allows the creation of parody, pastiche, critical analysis, and yes, indexes and even abstractions. Fair use is why we have Nero Wolfe, Jules deGrandin, and other "consulting detectives" and had them while all of the Sherlock Holmes books were under copyright. They met the tests.

It is also why we have THE WIND DONE GONE...

https://www.rcfp.org/publisher-can-r...-parody-novel/

...among many other things.

Like Super-folks:

https://en.m.wikipedia.org/wiki/Superfolks

There are generally clear limits to Fair Use, though:

Like the convoluted and ironic history of the first, true Captain Marvel:

https://en.m.wikipedia.org/wiki/Capt...vel_(DC_Comics)

DC comics and Fawcett fought a ten year fight over Billy Batson's alter ego for good reason. While tbe character himself was somewhat different from Superman, the covers of some of *comics* that featured him were admitted direct copies of earlier Superman covers. That sent beyond inspiration and failed the transformation test.

(As it ended up, DC now owns the copyright to both charwcters and their published stories, but not the trademark to Captain Marvel, which Marvel squatted on in the 60's. They've kept it by publishing a steady stream of different characters with the name, all with indifferent results. But enough to keep the trademark. Trademark law is a whole different framework.)

So back to Google and the IA: Google's database passed the tests, it was ttansformative, it didn't compete with the content it was derived from, it wasn't created as a mere copy, and it didn't lead to the distribution of anything but quotes. Yet it helps people find books tbey can then buy.

Google makes money providing a new useful thing and cfdating it was not trivial.

In contrast, IA's aren't substantially transformative: today it is trivial to digitize a title into ebook form. Anybody with a scanner and a couple hours can do it.

On the other hand, they aren't distributing trivial bits of the content but the entirety of it. And by giving it away they are competing with legally licensed instances of the product and the stated intent of degrading copyright law is by implication meant to reduce the value of tbe original.

That's four for four tests that Google (love 'em or hate 'em--and I'm closer to the latter) passes and IA fails.

It's not even a pale shade of gray.

Last edited by fjtorres; 06-05-2020 at 11:03 AM.
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