Monday, November 28, 2005
More on Google, Moore on the Edsel
Can they prevail? John Heilemann, in the current New York magazine, seems skeptical. He chats with AAP honcho Pat Schroeder--whose speedy alternation of chuckling defiance and funereal solemnity suggests a multiple personality disorder in the making--and Simon & Schuster CEO Jack Romanos, who has zero tolerance for the search-engine utopians. Romanos complains:
There’s sort of this innocent arrogance about them. One minute they’re pretending to be all idealistic, talking about how they’re only in this to expand the world’s knowledge, and the next they’re telling you that you’re going to do it their way or no way at all. We bent over backwards in negotiations, but they showed no interest in what we had to offer. They had a holier-than-thou attitude that hasn’t done them any favors.Romanos's frustration is easy to understand. What's more confusing is how the whole mess is going to play out. Heilemann gets Lawrence Lessig on the horn, and even the panjandrum of the Creative Commons throws up his hands in despair at the tangle of fair-use law: "There are parts of it that I don’t understand, and I've been studying it for years."
Well, I've been studying it for weeks, and I don't understand it either. But according to the stuff I've been reading on the Web, a crucial precedent for Google in its legal headbutting with AAP and the Authors Guild may be Kelly v. Arriba Soft, a decision handed down by the Ninth Circuit Court of Appeals in July 2003. In the case, a photographer named Les Kelly sued Arriba Soft, a search engine, for serving up thumbnail images of his landscape photos. Kelly and his lawyer argued that Arriba Soft's use of the photos was not transformative: the search engine had neither added to nor subtracted from the original, full-size images, and was therefore simply stealing them for its own commercial gain. The court threw that one back in their faces. What matters, according to the decision (you can read the whole thing here, in PDF format) is the function of the recycled material. Kelly's original images are panoramas of the American West, designed to aerate and expand the viewer's consciousness. Nobody's going to get a hit of the sublime from an image the size of a postage stamp, argues the court:
 Although Arriba made exact replications of Kelly’s images, the thumbnails were much smaller, lower-resolution images that served an entirely different function than Kelly’s original images. Kelly’s images are artistic works intended to inform and to engage the viewer in an aesthetic experience. His images are used to portray scenes from the American West in an aesthetic manner. Arriba’s use of Kelly’s images in the thumbnails is unrelated to any aesthetic purpose. Arriba’s search engine functions as a tool to help index and improve access to images on the internet and their related web sites. In fact, users are unlikely to enlarge the thumbnails and use them for artistic purposes because the thumbnails are of much lower-resolution than the originals; any enlargement results in a significant loss of clarity of the image, making them inappropriate as display material.From Google's point of view, you can see where this is going. Namely: serving up little snippets of copyrighted works is not an attempt to duplicate the aesthetic experience of reading the actual book.
Kelly asserts that because Arriba reproduced his exact images and added nothing to them, Arriba’s use cannot be transformative. Courts have been reluctant to find fair use when an original work is merely retransmitted in a different medium. Those cases are inapposite, however, because the resulting use of the copyrighted work in those cases was the same as the original use. For instance, reproducing music CDs in computer MP3 format does not change the fact that both formats are used for entertainment purposes. Likewise, reproducing news footage into a different format does not change the ultimate purpose of informing the public about current affairs.
Finally, Andrew Wylie puts in his two cents. The Jackal's piece in The Times of London is a little opaque (favorite simile: he compares the "scattering of worthwhile books" in a chain store to "teenage orphans in a roomful of sluts.") Still, he clearly wants to protect the rights of his client base, which makes sense: "We're at a decisive point in the development of our industry, and it's my view that leading agents and publishers should convene to develop working models for these rights. In most areas, for the time being, perspectives should be aligned."
On another note entirely: multitasking Marianne Moore helps out the automotive industry. This sterling anecdote comes from William Logan's new collection The Undiscovered Country: Poetry in the Age of Tin (more on that later).
The Ford Motor Company asked her to help name a new car, then apologetically, and with great delicacy, rejected her bizarre suggestions: the Intelligent Whale, the Arcenciel, the Mongoose Civique, the Pastelogram, the Turcotingo, and, surely the weirdest and most delightful, the Utopian Turtletop. The company decided to call this famous disaster of design the Edsel.