Larry Lessig has been criticising one of his critics, James DeLong, who he accuses of mischaracterising what he (Lessig) has been saying about the copyfight in the context of the Google Print dispute.
James DeLong says:
"In a recent blog about Google Print, Stanford Law Professor Larry Lessig repeats a story that is also at the center of his book Free Culture. He cites the 1946 airplane noise case of U.S. v. Causby as clearing the way for the air age by overthrowing the old legal doctrine that a landowner’s property extends to the heavens, thus making the airspace into a commons. He then draws an analogy to Google Print, arguing that the old copyright regime must be similarly overthrown in the name of the new commons of the Internet Age. Unfortunately, his depiction misstates the issues in Causby, ignores the fact that the landowner actually won, and fails to mention that the case stands for close to the opposite of the principles for which he cites it."
Lessig responds:
My use of the story — in both contexts — is perfectly apt, and correct. Here’s the passage I quoted from the case in the book, and referred to in the blog post:
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. 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. 328 U.S. at 261.
The use I’ve made of this paragraph is simply to remark an old property rule (that property extended to the “periphery of the universe”) that modern “common sense” changed (by making the “air a public highway”). What might have made sense with one technology (a world without airplanes) no longer makes sense with another technology (airplanes) and so society thus faces a choice: respect the ancient doctrines despite the consequence for progress (by which I mean the ordinary meaning of “progress” and not the very different meaning intended in the title, “Progress & Freedom Foundation”), or let “common sense” revolt against that regressive idea. The case recognized, and respected, the revolt. The law of property does not extend to the “periphery of the universe.”...
I think Google has a “fair use” right to build an index to books. (See a careful account of this by Bill Patry.) I don’t think Google has the right to scan copyrighted books from a library and serve full copies of those books to anyone in the world. That is, I distinguish between some rights, and all rights.
The Causby case matches that distinction precisely:
(1) The law gives copyright owners an exclusive right to “copy.” That’s the equivalent of the law giving land owners rights to the “periphery of the universe.”
(2) A new technology (digital networks; airplanes) now renders absurd respecting that exclusive right as it was before that technology.
(3) The proper response is for commons sense to “revolt” against the extreme claim (that the publishers get to control every copy, even one to simply produce an index; that the rights to land extend to the “periphery of the universe”)
(4) Revolting against the extreme claim does not entail abolishing all rights absolutely. The Causby’s can complain about planes flying within the “immediate reaches” of the ground. The authors and publishers should be able to complain about, e.g., someone who scanned and made full copies of a copyrighted book available online.
But there is one great and true part to DeLong’s email. As he writes,
Causby was entitled only to the decline in his property value, not to a share of the gains from the air age.
Truly, if there is a principle here, that should be it. The baseline is the value of the property BEFORE the new technology. Does the new technology reduce THAT value. Put differently, would authors and publishers be worse off with Google Print than they were before Google Print?"
They'll probably be better off, as long as Google doesn't tune the search engine to favour some authors/publishers over others, though there are other issues such as the hacking mentioned by Doug Lichtman in the comments; and the devil on the issues will, as usual, be in the detail. It seems fairly clear, however, that the lawsuits at the moment are primarily about derviving a share of Google's revenues from Google Print. Whether you would characterise this, as Larry does, as an attempt by the publishers and Authors Guild "to tax the value created by Google Print" is another question.
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