20 March 2005

The Division Bell

A news item out of France reveals the real (or at least foundational) disagreement between the two major copyright policy camps. On the one hand, we have the traditional holders, who want "their" works treated as property with an extremely high fence around, rabid guard dogs on the property, and authorization to shoot on sight. On the other hand, we have a segment of nonholders that believes that massive distribution of copyrighted works is not just a good idea, but a right. Google's designated spokesperson unintentionally crystallized the real difference between the two:

We allow publishers to opt out of Google News but most publishers want to be included because they believe it is a benefit to them and to their readers.


The real controversy isn't a one-dimensional distinction, as Mr. Langdon implies. Certainly, the attitude difference between opting in to protection and opting out of protection is a significant aspect of the controversy. That's what this lawsuit boils down to, at one level anyway. Google's position—which, whether it is the "best" policy or not, is largely indefensible under the law as it stands—is that copyright protection is something that unfettered redistribution (and presumably unfettered creation of derivative works) must be opted out of by copyright holders. In other words, once one makes it possible for any member of the public to see a copyrighted work, all members of the public have an equal right unless the holder takes explicit steps to squelch undesired redistribution or creation of derivative works. The corresponding position is that redistribution (and creation of derivative works) must be opted in to by copyright holders. That is, only the holder's specifically desired and authorized uses of a copyrighted work are allowed.

In this particular context, the "fair use" issue seems to have been laid aside. On the one hand, the strongest formulation of the "opt in" theory would eliminate fair use, and we'd then be stuck with interminable arguments over whether a particular quotation constituted fair use, or whether the concept of "limited ways to express facts" loosens protection for news articles, or whatever. On the other hand, the strongest formulation of the "opt out" theory would claim virtually everything short of plagiarism—and even plagiarism in some circumstances—as "fair use." (Don't laugh too hard at these caricatures—they're both drawn from statements made by real activitists.) The twist here is that the real dispute is not over the news stories, or even over the photographs. Leave the rhetoric aside and look at what Google does: It reproduces the material out of context. Out of the page-layout context. Out of the trademark context. And, what really has AFP upset, out of the advertising context; even worse, in someone else's advertising context.

I have all too much experience with the latter. I don't do advertising. Some low-cost and free webspace providers, over the years, have put what they considered to be "targetted" ads onto various websites on which my work has appeared; sometimes this has been on my own sites, sometimes when my work has appeared elsewhere. Because of the kinds of works I create, though, this is usually startlingly inappropriate. It was sadly amusing the first time that [major credit-card issuer]'s ad appeared on my site's provider-mandated rotating ads during the course of a series on that issuer's abuse of consumers. It was tiresome the fifth time. It was irritating the twentieth time, when that ad appeared along with a completely unrelated piece, presumably because somewhere else on the site a spider or robot found "consumer credit." Things got worse when dealing with book reviews. I no longer have an "Amazon associate bookstore," for a very simple reason: It "stocks" books based on mentions of other books… even when those mentions are extreme criticism. It even "stocks" books explicitly condemned as insults to dead trees, just because their titles are there. In one instance, it "suggested" purchase of erotica in context of a review of a children's book, presumably because the authors' names are the same (although they're not the same person). At least Powell's doesn't do that!

This is not as tangential as it appears. Leaving aside the policy issues concerning fair use for another time—they're not easy, and both extremes are wrong—the controversy is being driven by considerations other than the content of the copyrighted material. It is being driven by the context in which that material has been distributed, both with and without explicit authorization. In turn, this means that bad facts are going to make bad (and constantly misinterpreted) law no matter who "wins" the dispute. In the final twist, that means that the only winners will be nonparties: the advertisers. And the lawyers (but I suppose I shouldn't object to that too strenuously).