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

Joseph Pietro Riolo wrote:

> . . . the result that is reconstructed from large
matrix so that
> it is identical to original work whose copyright is
still active still
> infringes the original work's copyright.

The Second Circuit is on record as writing that the fact that *someone* might use a defendant's database to reconstruct a copyrighted work does not mean that the *defendant* has made a copy; only that the *someone* has. (A Google on my name near "affidavit" and the word "West" will find the cite and the quote:

"[A] database manufacturer may be liable as a contributory infringer . . . for creating a product that assists a user to infringe a copyright directly. West has hypothesized that users of Bender and HyperLaw's products, using star pagination and the search functions of the CD-ROM products, will retrieve and print cases in the order in which they appear in West's case reporters. . . . A CD-ROM disc user who replicated the West compilation in that way would be an infringer. But West has failed to identify any primary infringer, other than Mr. Trittipo, West's counsel." http://lw.bna.com/lw/19981110/977430.htm)

That is, a user-created result (output) may infringe, without the *input* (or its creator) being infringing.

So if Google has been clever, they will have made no copy other than one that the libraries have a good archival fair use defense to make; and all Google will ever have made for itself is an index, and nowhere on any Google server will there be a file corresponding to a whole work, or indeed a single file corresponding to any large contiguous block of a whole work. A useful thought experiment example is still a database of CAT-scan type measurements of a sculpture: nothing but a set of uncopyrightable facts by itself, but usable by *someone* to put a rapid prototyping machine in motion to create a copy of the sculpture. If Google itself has no copy, only a database or index that *someone else* could use to make a copy, and if the one copy made for the libraries is protected as fair use, the case may end soon.

I have not researched any of the facts about Google's contracts with the libraries, or the technical process for creation of copies or any index, so this is only speculation, rather like the frog's retinas. :-)

Michael Trittipo
Minneapolis, Minnesota Received on Wed Oct 05 2005 - 01:00:31 GMT