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Yale CPSC 457 - Copyright Reforms for the Digital Age

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Copyright Reforms for the Digital Age: A Closer Look at GoogleDaniel Holevoet and Sarah Price1When one of the authors discovered that her brother kept a personal blog, she wasimmediately curious about what he had written about her. Unwilling to pour through hundredsof entries, she used Google to search the domain of his blog for various terms, such as "sister,"and used the pages Google cached to find out what exactly he had said. Needless to say, herbrother probably did not anticipate this availability of information to his sister. It would seemthat Google's services might actually be a detriment to copyright holders. Yet, in 2006,companies that Google had banned from its returns pages, such as KinderStart, filed a suitagainst Google for unfairly blocking them, because hits to their website dropped 70% whenGoogle stopped showing information about their site.1The extent to which computers have changed everyday life is undeniable. It is nowpossible to obtain vast amounts of information more quickly and easily than ever before. Withthe conveniences brought by the digital revolution, however, complications far exceeding thoseof this example are inevitable. Not only does this new availability of information create novelsituations that challenge former legal and social situations, but even the very nature of computingitself strains pre-existing legislation. The nature of governmental processes has meant that oldlegislation and concepts have been twisted to match a changing reality, and that new legislationis often reactionary and ill-advised.This paper examines the strains placed on copyright law by the dynamic environmentcreated by new technology. We first consider the history of copyright law from its origins to thepresent. Next, we consider Google as an example of a business, which has formed a robusteconomic model, based on opportunities presented by new technology, and how its businessstrategy and the limitations of existing copyright legislation challenge each other. Finally, we 1 SiliconValley.com, “Lawsuit alleges Google improperly banishes Web sites.” 03/17/2006. Available at:http://www.siliconvalley.com/mld/siliconvalley/news/editorial/14125988.htm2consider what interests should prevail in this battle and how the legal and technologicalenvironment should be modified in order to attain balance.Part One: United States Copyright LawFoundations of United States Copyright LawIt is reasonable that the government of a nation offer to its citizens some way to protecttheir works. In the United States, this protection takes the form of copyright laws, which securea monopoly on a work to its owner for a limited time period. The power for the United StatesCongress to establish laws regarding copyright is found in Article I, Section 8, Clause 8 of theUnited States Constitution: “The Congress shall have Power [. . .] To promote the Progress ofScience and useful Arts, by securing for limited Times to Authors and Inventors the exclusiveRight to their respective Writings and Discoveries.” The meaning intended by the framers of theConstitution can be easily gathered from historical context, as the world’s first copyrightlegislation appeared 70 years earlier. The Statute of Anne, passed by the British Parliament in1710, reads:Whereas Printers, Booksellers, and other Persons, have of late frequently taken the Liberty ofPrinting, Reprinting, and Publishing, or causing to be Printed, Reprinted, and Published Books,and other Writings, without the Consent of the Authors or Proprietors of such Books and Writings,to their very great Detriment, and too often to the Ruin of them and their Families: For Preventingtherefore such Practices for the future, and for the Encouragement of Learned Men to Composeand Write useful Books; May it please Your Majesty, that it may be Enacted . . . [that copyrightowners] shall have the sole Right and Liberty of Printing such Book and Books…Within a year of when the Constitution took effect, the United States Congress passed its ownfederal copyright legislation, the Copyright Act of 1790. It begins by describing itself as “an Actfor the encouragement of learning, by securing copies of maps, Charts, And books, to the authorsand proprietors of such copies, during the times therein mentioned.” It secures to copyrightowners “the sole right and liberty of printing, reprinting, publishing and vending” their works for3a period of fourteen years, and provides relief to copyright owners against violators in the formof injunctions and monetary compensation. Both the Copyright Act of 1790 and the Statute ofAnne required registration and the receipt of the work in an official depository for all copyrightprotections to apply.Copyright law has changed in many substantial ways in the intervening time period,including the duration of copyrights, the kinds of materials that can be copyrighted, and what acopyright owner must do to ensure that his works are protected. Earlier Acts of Congressrequired rights to be contingent on proper adherence to formalities; after the 1976 Act, some ofthese formalities were relaxed, and US adoption of the standards of the Berne Convention in1989 relaxed them further, though US Copyright law still requires formal registration for theright to sue for statutory damages. The most recent Berne Convention agreement basicallydictates that member nations recognize the copyrights given to works produced in the othermember nations, and requiring member nations to protect these works as they do their own.Why Copyright?The fact that the interests of authors and related parties are protected by copyright is aninteresting point that can be easily overlooked. When copyright laws first originated, the bestway for a creator to distribute his ideas and work, and still gain compensation, was to publish ina printed medium and charge consumers. Printing and publishing, however, were still relativelyexpensive. Copying required complicated machinery that was owned primarily by publishers,and not easily available to the average citizen. By preventing the unauthorized copying andpublishing of his work, an author or his publisher was effectively blocking other publishers fromreproducing the same work for their own personal gain. Laws of economics make it clear to usthat these copies would dilute the market and decrease the profits available to the original author4and publisher. If the author were unable to receive compensation, he


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