Re: Re: Authors Guild's Paul Aiken Opposes 'Turning Copyright Law Upside Down' -- Except When the Guild Is Helping Publishers Impose a 'License By Default'

At 04:55 PM 9/26/2005, Joseph Pietro Riolo wrote:

>There are two reasons why I think that Google is not
>committing any copyright infringement. First reason
>is that all Google does is to create index to books.
>Index is a separate work and therefore, Google does
>not need to ask authors for permission to create
>index to their works.

I am certain that Google watched the Ditto.com thumbnails case fairly closely, because it was not until after Ditto won the thumbnails part of the case that Google introduced its thumbnail/image engine (not including the inlining of graphics out of context that the second (or third?) court fussed about. It seems sorta related since in both cases there is a copying of the complete work for purposes of making a summary.

I have generally argued (at least for the past n years for some large number n) that copying a work in its entirety should be allowed if the end result is a summary* (such as a thumbnail of an image or an index of a book). Such is probably the reason "fair use" clauses came into existence and is, I think, inseparable from rights of free speech and free press. The ability to refer to an idea by summarizing it is an important part of what free speech is. The fact that a brain might memorize a copyrighted work, or that a retina might copy an entire image does not mean that all uses that that brain or eye finds for the work are wrong. If it should become so twisted as to mean that, then that it means, rather, that copyright laws are wrong.

Nevertheless, the question of what facts about an original expression are separable from that expression is an interesting one. From the point of view of wishing a free society to expand its knowledge, we want lots of facts about our expressions to be publicly visible. I often think of the period between 1923 and the present in the US as a sort of Dark Ages -- the material inside that period is locked away and hence useless. The only useful stuff is the stuff you can do things with. Why fill a brain with secrets (copyrighted stuff) that you can't use?

While most would agree that if A writes the copyrighted work B, then while B is not in the public domain, the sentence "A wrote B" should be in the public domain (unless the authorship or existence of B is somehow a secret). Suppose we know the answer to "x" but that the answer is a secret. Suppose further that it is a secret that "the answer to x is a secret". How then to answer the question "what is the answer to x?" ? Does not such segregation of information into public vs secret severely tax our ability to remain honest?

For any private string B, if beta is related to B by

         gist(beta)=gist(B) and NOT(beta -> text(B') for any B' where B' infringes B)
then beta is rightfully in the public domain. ( the symbols "->" mean "can be used to derive")

To muck with that would seem to raise constitutional issues.

• a summary from which the original or an infringing facsimile might not be reconstructed by any known (or conceivable) process -- see a thing I wrote about reconstructing the works of James Joyce based on a graph theoretic co-occurrence concordance using frog retinas: http://srufaculty.sru.edu/david.dailey/copyright/joyce.htm