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«Hal Abelson Ken Ledeen Harry Lewis Upper Saddle River, NJ • Boston • Indianapolis • San Francisco New York • Toronto • Montreal • London ...»

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The library project will certainly be beneficial to Google by making its search engine more valuable, and Google is indeed scanning the books without permission from the copyright holders. Are they “appropriating property” and extracting value from it without compensating the owners, not even asking for permission? Should Google be permitted to do that? If you write a book, and that’s “property” that you “own,” how far should the limits of your ownership extend?

As a society, we have faced this kind of question before. If a stream runs through your land, do you own the water in the stream? Are there limits to your ownership? Can you pump out that water and sell it—even if that would

CHAPTER BALANCE TOPPLED

COPYRIGHT WEB SEARCHING

AND If you believe that the Google library project violates copyright, you might wonder whether search engines themselves infringe copyright by caching and indexing web sites and providing links. This claim has been the source of lawsuits, but the courts have been rejecting it. In Field v. Google (January 2006), a Nevada District Court ruled that Google’s caching and indexing of web sites is permissible. One of the factors in the ruling was that Google stores web pages in its cache only temporarily. In Perfect 10 v. Google (May 2007), the Ninth Circuit Court denied an adult magazine’s request for a preliminary injunction to prevent Google from linking to its site and posting thumbnail images from it.

cause water shortages downstream? What about the obligations of landowners upstream from you? These were major controversial issues in the western U.S. in the nineteenth century, which eventually resulted in codifying a system of limited property rights that landowners have to the water running through their land.

Suppose an airplane flies over your land. Is that trespassing? Suppose the plane is flying very low. How far upward does your property right extend?

From ancient times, property rights were held to reach upward indefinitely.

Perhaps airlines should be required to seek permission from every landowner whose property their planes traverse. Imagine being faced with that regulatory question at the dawn of the Aviation Age. Should we require airlines to obtain that permission out of respect for property and ownership? That might have seemed reasonable at a time when planes flew at only a few thousand feet. But had society done that, what would have been the implications for innovation in air travel? Would we ever have seen the emergence of transcontinental flight, or would the path to that technology have been blocked by thickets of regulation? Congress forestalled the growth of those thickets by nationalizing the navigable airspace in 1926.

Similarly, should we require Google to get permission from every book’s copyright holder before including it in the index? It seems perfectly reasonable—and in fact other book indexing projects are underway that do seek that permission. Yet perhaps book search is the fledging digital equivalent of the low-flying aircraft. Can we envision the future transcontinental flights, where books, music, images, and videos are automatically extracted, sampled, mixed, and remixed; fed into massive automated reasoning engines; assimilated into the core software of every personal computer and every cell phone— and thousands of other things for which the words don’t even exist yet?

228 BLOWN TO BITS What’s the proper balance? How far “upward” into the bursting information space should property rights extend? What should ownership even mean when we’re talking about bits? We don’t know, and finding answers won’t be easy. But somehow, we must learn to fly.

✷ The digital explosion casts information every which way, breaching established boundaries of property. Technologies have confounded copyright—the rules that would regulate and restrain bits in their flight. Technological solutions have been brought to bear on the problems technology created. Those solutions created de facto policies of their own, bypassing the considerations of public interest on which copyright was balanced.

Property lines are not the only boundaries the explosion is breaching, and copyright is not the only arena in which information regulation is challenged.

Bits fly across national borders. They fly into private homes and public places carrying content that is unwanted, even harmful—content that has historically been restricted, not by copyright, but by regulations against defamation and pornography. Yet the bits fly anyway, and that is the conundrum to which we now turn.



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