Can Copyright kill the Internet?

The question seems extreme, and it is certainly rhetorical.  But the potential for copyright challenges to significantly limit the range of activities and services available on the Internet is very real, and severe limits on the full potential for digital communications could be imposed.

One of the great strengths of the Internet — its completely international character — is also one of its greatest weaknesses.  Since laws change across national boundaries, but the Internet goes merrily along, online services can potentially be made subject to the most restrictive provisions found anywhere in the world.

In the US, for example, there is solid case law holding that thumbnail versions of images used in image search engines are fair use.  The cases of Kelly v. Arriba Soft and Perfect 10 v. Google are solid examples of this principle.  But fair use is a fairly unique feature of US law; it does not exist in most other countries.  So when Google’s image searching was challenged in a German court on copyright infringement grounds, they did not have fair use to rely on for their defense, and they lost the case earlier this week.  The German court held that this valuable tool infringes copyright if the thumbnail images are used without authorization, even if the use is to provide an index that helps users actually find the original.  There are reports about the decision here and here.

How will Google react to this decision?  First, they will almost certainly appeal.  It is possible, ultimately, that they would have to employ some kind of technological measures that would prevent users in Germany from seeing the image search results with thumbnails, a result that would ultimately harm business in Germany more than Google.  It is very unlikely that Google would have to shut down its image search feature, but multiple decisions might force a reexamination of how Google provides services worldwide.  A similar case, involving the sale of Nazi memorabilia in France, led Yahoo to exactly that sort of system-wide change.

The general lesson here is that the current copyright regime throughout the world is in a fundamental conflict with the openness and creativity fostered by the Internet.  Most companies today want to do business on the Internet, but few are willing to embrace the fundamentally open nature of the medium.  The resulting conflict really does threaten to constrict the role the Internet can play in our lives.

The conflict is the subject of an interesting article from The Wall Street Journal by Professor Larry Lessig of Stanford, a short teaser for his forthcoming book “Remix.”  Lessig suggests that the copyright “war” over per-to-peer filesharing risks significant “collateral damage.”  That damage would come in the chilling effect that frivolous lawsuits and poorly-researched DMCA “takedown notices” could have on new forms of creativity and art — the products of the remix culture which, Lessig argues, offers a return to an era when amateur artists could thrive.  This culture offers “extraordinary” potential for economic growth, according to Lessig, if it is not choked off by aggressive enforcement directed at a very different activity.  To prevent that, he offers five changes that could make our copyright law less of a threat to the innovation and creativeity the Internet encourages.

Will copyright kill the Internet?  No.  But copyright will need to be revised to account for the new opportunities that the Internet creates, lest we find ourselves unable to exploit those opportunities.

PS — This story about the McCain/Palin campaign fighting back against DMCA takedown notices that are being used to force YouTube to remove campaign videos that contain short clips from news programming, is another example (if we needed on) of the potential for abuse of the copyright system to chill important speech on the Internet.  Good to see the McCain camp fight back, but I wonder if it is really YouTube’s job to evaluate the merits of the takedown claims.  A court recently told content owners that they must consider fair use BEFORE sending a takedown notice; I wonder if the better course isn’t to pursue some kind of sanctions against those who send clearly unwarrented notices.

3 thoughts on “Can Copyright kill the Internet?”

  1. it makes sense for WebQuests to incorporate them as long as they have a pedagogical justification.

  2. Google’s use of thumbnail images, and its general approach to its favored interpretation of fair use, have received support in the cases cited, but it is important to remember that those cases were decided in the Ninth Circuit, which has proposed an idiosyncratic interpretation of fair use that so far has failed to be followed in other federal circuits. It relies on a notion of “transformative use” that equates a different functional use with “transformation.” This is far different from what Judge Pierre Leval of the Second Circuit promoted as “transformative use” in his influential 1990 Harvard Law Review article. Since Leval sits on the Second Circuit Court of Appeals, there is good reason to believe that Google would not have prevailed in its fair use case against the publishers and authors, which is being tried in the Second Circuit. Consider this: the Grokster decision, which was the work of the Ninth Circuit, was overturned by the U.S. Supreme Court in a unanimous ruling. So it seems unlikely that, even if Google managed to prevail in the Second Circuit, it would prevail in the highest court. This is the reason, I believe, that Google decided to settle the case and cut its losses, working out a deal with authors and publishers for a measly $125 million that will provide a return on investment for Google many, many times over–especially given its enormous 33% share of all revenues deriving from the revenue-producing features of the settlement. Do you know of any authors who receive a royalty that high? And Google doesn’t even produce the content!

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