Copyright Reforms for the Digital Age:A Closer Look at GoogleDaniel Holevoet & Sarah PriceIntroductionWhat We Cover:History of copyrightGoogle as an exampleProposed modificationsFoundations of US Copyright LawProtection for Intellectual WorksGranted by federal governmentCopyright LawsSecure a monopoly to the holderFoundations of US Copyright Law (cont)Article I, Section 8, Clause 8“The Congress shall have Power […] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”Foundations of US Copyright Law (cont)Statute of AnneCopyright Act of 1790Foundations of US Copyright Law (cont)Changes in Copyright LawRelaxation of formalitiesBerne ConventionWhy Copyright?Copy-centricPrinting and publishingGuarantees compensationServes interest of public and copyright holdersAttitude Towards CopyrightWheaton v. Peters“no reporter has or can have any copyright in the written opinions delivered by this court; and that the judges thereof cannot confer on any reporter any such right”Baker v. Selden, Feist v. Rural Telephone“sweat of the brow”Fundamentals of CopyrightTitle 17, Section 102Works must be “fixed in a tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device”Copyright protection can never extend to “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work [of original authorship].”Fundamentals of Copyright (cont)Owner of a Copyrighted WorkSection 202 specifically states this distinction, and adds that “transfer of ownership of any material object . . . does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does the transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.”Fundamentals of Copyright (cont)Exclusive Rightsto reproduce the copyrighted workto prepare derivative worksto distribute copies of the work to the public by sale or other transfer of ownershipto perform and display the work publiclyTraditional Limitations on CopyrightTitle 17, Section 107the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit purposesthe nature of the copyrighted workthe amount and substantiality of the portion used in relation to the copyrighted work as a wholethe effect of the use on the potential market for or value of the copyrighted workTraditional Limitations on Copyright (cont)Digital Media Differs From Analog MediaPerfect copiesLittle to no marginal cost of productionTends to require duplication in everyday useDigital Millennium Copyright ActProtects Copy-Protection MechanismsReplaces economic costs of copying with legal onesAttempts to Remedy Issues Caused by Everyday CopyingDigital Millennium Copyright Act (cont)Title IFollows World Intellectual Property Organization TreatyProhibits “circumvention of technical measures used by copyright owners to protect their works”Digital Millennium Copyright Act (cont)Title I, continued...Prohibition on tools that expressly circumvent copy-protection mechanismsLimitations on Fair UseFair Use is not a valid reason to break protectionProtects works even out of copyrightDigital Millennium Copyright Act (cont)DeCSS, an ExampleBreaks DVD encryptionAllows transcoding of DVDs to other platforms and formatsIllegal under DMCA even though it is otherwise Fair UseDigital Millennium Copyright Act (cont)Exemptions to Title INon-profit libraries, archives, education, to decide whether to obtain authorized useReverse-engineering for compatibilityEncryption researchProtection of minors and privacySecurity testingDigital Millennium Copyright Act (cont)Title IIProvides exemptions to copyright for “service providers”Acting as a conduitSystem cachingMirroringAmong others…Digital Millennium Copyright Act (cont)Problems with Title IIDoes not rectify concerns with personal copying in RAM or on diskLeaves this interpretation to the courtsGoogle’s Economic ModelThree ConstituenciesUsersAdvertisersGoogle Network MembersGoogle’s Economic Model (cont)Users1% of revenue from search enginesPortalImages, News, Gmail, etc.SearchGoogle’s Economic Model (cont)AdvertisersForm 99% of revenueAdWordsPay-per-clickGoogle’s Economic Model (cont)Google NetworkAdSenseSearchContentRevenues returned to membersMember controlGoogle’s Economic Model (cont)The “Hidden Constituency”(i.e. copyright owners)Legal Issues Presented by GoogleText Excerpts and KeywordsSearch results return highlighted phrases within a summaryShows contextual ads along with search resultsMay show adds for competitor companies along with search resultsLegal Issues Presented by Google (cont)Geico v. Google Inc.Ruled that sale of trademarked names as AdWords was legalAds must not contain the trademarked nameCheck ‘n Go has sued over the same issueThere still remain questions over the legal of Google’s actionsLegal Issues Presented by Google (cont)Google ImagesDisplays representative thumbnails along with contextual adsKelly v. Arriba SoftTransformative worksPerfect 10 v. GoogleGoogle found infringing due to profitingLegal Issues Presented by Google (cont)CachingProvides plain text versions of sitesAllows viewing of pages that are no longer onlineActs similarly to the Internet Archive Wayback MachineLegal Issues Presented by Google (cont)Internet Archive Wayback MachineProvides historical views of the internetHealthcare Advocate, Inc. and Harding Earley Follmer & FraileyHealthcare AdvocatesSued Harding et al. and Internet Archive for copyright and DMCA violationsLegal Issues Presented by Google (cont)Field v. GoogleDecided that Google caching was Fair Use“improv[es] access to information on the internet”Does not resolve the issue of DMCA violations and robots.txtLegal Issues Presented by Google (cont)Caching in CanadaBill C-60Amendment to Copyright ActImplements parts of WIPO TreatyCould make caching of content illegalLegal Issues Presented by Google (cont)NewsNews entries are gathered from media outletsContains a short summary with a link to original providerGoogle does not advertise on News site, nor cache