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Scrivener's Error| null | |
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Scrivener's Error |
Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting. |
link to: 11:39 [GMT-6]
With no further ado, here's the Saturday sausage platter! And, like every platter of link sausages, you really don't want to know how these were made... or how I came across the ingredients.
...Amazon doesn’t commit copyright infringement by making a tool that can commit copyright infringement. If there’s an infringement taking place on the Kindle, then the infringer is the user.
These two sentences are a complete non sequitur, because they're missing a critical word: direct. As Grokster makes clear, under some circumstances a toolmaker does commit indirect (or what the Court ineptly called "secondary") infringement if it knows that users will use the tool to commit clear direct infringements and bases its business model on that knowledge.
...Amazon has no obligation to prevent its users from infringing, because tool makers are not required to take measures to prevent infringement from taking place using their devices. Kodak, Xerox, Microsoft and the Mozilla Foundation are all free to deliver products that can (and DO!) infringe copyright without having to worry about designing their products to minimize infringement (this principle of law originates with the 1984 Supreme Court ruling in the Betamax [Sony] case).
This is a gross overstatement of Sony, primarily because it inverts the Court's reasoning. Sony did not concern attempts to "minimize infringement;" it concerned whether there was a substantial noninfringing use to balance against any infringing use. That sounds like a subtle distinction, but it's not; Mr Doctorow's next paragraph makes clear why it matters...
Finally, there is no way that Amazon could build a non-infringing TTS feature, because such a feature would have to be able to determine, a priori, whether a user was presently located in a jurisdiction in which a work was or was not in copyright — and more importantly, it would have to be able to adjudicate fair use claims (I’m sure that even if the [Authors' Guild] claims reading the whole book is infringing that they would agree that a short fragment does not necessarily infringe).
Well, actually, this is all completely wrong, both technologically and legally. From the technological standpoint, Amazon could limit reading to passages of less than, say, 2:50 (the purported "sweet spot" for a pop song on 1960s/1970s radio), or build in a cutoff that will end a reading at the first terminal punctuation after that point. We'll slide over the jurisdiction issue for the moment, because it's a misstatement of the jurisdictional test for reasons that only a civil procedure nerd like me will even care about; it's simultaneously vastly more complex in analysis and vastly more simple in result than Mr Doctorow implies. That said, it's the last sentence that reveals everything about Mr Doctorow's approach. Fair use is a defense, not a right, under US copyright law (and even more so, although not codified as such or called "fair use", under the Berne Convention generally and under UK, German, Swiss, Austrian, and Japanese domestic copyright law — and probably others, but I've just not gone into satisfactory-to-me original-language depth elsewhere); that is, it cannot be "adjudicated" until the infringed copyright holder defines the scope of infringement that is at issue.
This has been a difficult-to-digest sausage for a variety of reasons, the most important of which is that ultimately I think the Kindle text-to-speech feature is not, itself, the source of any infringement... for the same reasons as the Court actually stated a quarter of a century ago in Sony. I strongly differ with Mr Doctorow's reasoning and statement of what "the law is," though, and perhaps this has been a useful exercise in showing — again — the distinction between, on one tentacle, the law's (often insanely bizarre) requirements and, on other tentacles, technological reality, policy preferences, and individual behavior. My ultimate point is that sometimes the law is not an ass — this time, instead, it's the Authors' Guild. Those with a sense of irony might note the Authors' Guild's inconsistent position in the proposed settlement of the Google Book Search lawsuit (and, as soon as I clear a conflict, I'll finish that rant), not to mention its inept initial position therein.
Labels: copyright, culture, intellectual property, jurisprudence, mass media, miscellany, publishing, science
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All material © 2003–12 except where otherwise indicated. All rights reserved. This blawg does not use the Creative Commons License, although I'm usually pretty good-natured about permissions for attributed reuse.
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Sausages?
Internet link sausages, as frequently appear here, are gathered from uninspected meaty internet products and byproducts via processes you really, really don't want to observe; spiced with my own secret, snarky, sarcastic blend; quite possibly extended with sawdust or other indigestibles; and stuffed into your monitor (instead of either real or artificial casings). They're sort of like "link salad" or "pot pourri" or "miscellaneous musings" (or, for that matter, "making law"), but far more disturbing.
I am not responsible for any changes to your lipid counts or blood pressure from consuming these sausages... nor for your monitor if you insist on covering them with mash or sauce.
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