Thursday, September 22, 2005

Google sued

Lawrence Lessig: "Google wants to do nothing more to 20,000,000 books than it does to the Internet: it wants to index them, and it offers anyone in the index the right to opt out. If it is illegal to do that with 20,000,000 books, then why is it legal to do it with the Internet? The “authors’” claims, if true, mean Google itself is illegal. Common sense, or better, commons sense, revolts at the idea. And so too should you."

Lessig argues from "commons sense" that Google should win this case. His comparison is to the case of United States v. Causby in which a couple farmers sued claiming that they owned the airspace above their land and that airplanes flying over it without their permission were trespassing. Justice Douglas delivered the opinion of the court:

It is ancient doctrine that at common law ownership of the land extended to the periphery of the universe -- Cujus est solum ejus est usque ad coelum. [FN 5] But that doctrine has no place in the modern world. The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim.
[FN 5] 1 Coke, Institutes, 19th Ed. 1832, ch. 1, 1(4a); 2 Blackstone, Commentaries, Lewis Ed. 1902, p. 18; 3 Kent, Commentaries, Gould Ed. 1896, p. 621.
Lessig argues that the Internet and its technologies demand a different approach to protecting intellectual rights:
"But if the law requires Google (or anyone else) to ask permission before they make knowledge available like this, then Google Print can’t exist. Given the total mess of copyright records, there is absolutely no way to enable this sort of access to our past while asking permission of authors up front. Or at least, even if Google could afford that cost, no one else could." [Lessig]