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Wall Street Journal Editorial Muddles the Issues

December 1, 2006 , ,

As Alex has mentioned, the Wall Street Journal today printed an editorial that broadly describes Google’s business as being “legally ambiguous” in terms of copyright law. But the editorial itself does clarity no favors in making its argument. The piece not only blurs the facts of what Google’s doing, it also mischaracterizes the legal landscape, in promoting a system where anyone providing an online service has to either seek permission from copyright owners before setting up shop or to pre-screen and pre-approve everything that their users do online.

According to the Wall Street Journal:

Google and YouTube claim it’s impossible for them to chase down permission from tens of millions of video and printed-word copyright owners. Hey, this was their idea; it seems like a $150 billion, smarter-than-everyone company should be able to figure out how to police its Web site.

The piece does a bad job of laying out the facts surrounding several distinct Google activities–BookSearch, YouTube, and news and image searches. Vaguely referring to these all in the same breath, the Journal suggests that the company is posting entire bookstores’ worth of copyrighted materials for anyone to read. This just isn’t the case. Google only posts short snippets of copyrighted books owned by its library partners, so that, for instance, users trying to identify a given quote or passage can identify its source. Longer passages are hosted only with the permission of the publisher, or if the book has already entered the public domain. In the case of copyrighted books, no more than a few lines at a time–certainly no more than would be available in a book review or in any other “unauthorized” use.

YouTube represents a wholly different case, but one no less justified on Google’s part. It’s simply not Google’s responsibility to act as editor for the millions of people on the Web that want to upload things to its site, any more than Google has the obligation to peruse the countless websites it indexes for copyrighted material before linking to them. Just like user-made web pages, the videos on YouTube are created and uploaded by users, providing the sort of instant exchange of information expected of the Web. If a clip infringes copyright, it is taken down. Alex covered this more extensively in his post.

But apparently, this isn’t enough for the Journal’s editorial, which would hold Google and YouTube liable for what individual users do. By the same token, should webpage hosts review all of the content their subscribers post before putting the content online? If that were the case, the Web as we know it would not exist today.

What the editorial is advocating is part of a culture of control: users and technology innovators must have permission not just to copy, but to talk about, refer to, or link to something. Now the content industries want to expand that to require permission before setting up a service that someone else might abuse.

The editorial also closes with a doozy of a non sequitur:

A recent Cato Institute paper argues that “transformative” technologies like search engines should be exempt from many of these copyright lawsuits because they create entirely new products out of the old. They argue that the role of “copyright law is to promote, not impede technological progress.” That’s true. But without rigorous enforcement of intellectual-property rights, there may not be much technological progress to promote.

It’s hard to see where that last sentence comes from. Google and YouTube exist despite individual infringers, not because of them. The editorial’s version of rigorous IP enforcement would prevent tech innovators like Google from giving users new ways to create and access content, while providing no new incentives for content innovators to create. Home taping didn’t kill music, the VCR didn’t kill TV or movies, and Google and YouTube aren’t going to do it either.

Update: Tim Lee, the author of the paper cited by the editorial, takes issue with the misuse of his quote, and with a lot of the inaccuracies of the editorial itself, here.