August 13, 2006:
Does Your Work "Deserve" Copyright Protection? Just Ask Google!

I realize it has been awhile since the last installment of "Coffee on the Deck." Perhaps that's because it has been awhile since I've actually had coffee on the deck. Today, for the first time in weeks, I was able to enjoy a cup in the sun, without feeling that, if I'd bothered to set the pot in the sun next to me, it would be able to brew itself.

Or perhaps it's because I haven't come across too many things to rant about lately. Isn't it wonderful, however, that if you want to find something, Google is always there to help you? Unless, of course, the thing you find to rant about is, in fact, Google itself!

I've been avoiding comment on the ongoing controversy over Google's apparent desire to index every scrap of "content" in the known world. I'm surprised the folks piecing together the Dead Sea Scrolls haven't had to fight off Google-ites trying to index a few choice fragments. Perhaps the Human Genome Project ought to enlist Google in the quest to create a searchable index of human DNA!

However, tolerant as I may be toward Google's obsessive-compulsive-indexing disorder in general, I find my tolerance strained when our search engine friends take steps to dismantle copyright law as we know it in their endless quest to index "just one more thing." Most recently, Google has raised arguments in court not as to whether they should or should not be able to index copyrighted materials -- but whether those materials "deserve" to be protected by copyright in the first place!

In a recent case, Blake Field, a Nevada author, wrote and presumably posted a collection of short stories, and then sued Google for caching them without his permission. Google's response is an unfortunate one from the perspective of authors everywhere: Its attorneys argued that the stories in question should not enjoy the full protection of copyright law because they weren't good enough.

Specifically, according to Google's attorneys, Field's stories were "minimally creative works," "ramblings," and "not... deserving of any enhanced protection." Worst of all, apparently, Field spent "only three days" writing the stories.

Excuse me? So now Google is in both the indexing and the literary criticism business? Perhaps they will share with us the amount of time that is required to produce a story of sufficient "merit" to be deemed deserving of protection. Four days? A week? I have a boxful of writings in the closet that could certainly be considered only "minimally" creative (which is why they're in the closet). They do not, in my opinion, deserve publication. They do not "deserve" to be read by anyone by my nearest and dearest. But it has always been my fond belief that they did, at least, deserve the same degree of protection under the law as someone else's Pulitzer material.

As for "ramblings," this is the age of the blog. I write a column called "Coffee on the Deck" -- enough said! And as for the time factor, I think most writers discover that the more professional, skilled, and proficient they become at their craft, the less time it actually takes to write something -- and write it well!

Google attempted to apply a similar argument to the use of nude photos from a website called "Perfect 10," claiming that the photos weren't "deserving" of copyright (that nasty word again) because of their "factual" nature. Um, aren't most photos supposed to be "factual" -- i.e., relatively accurate representations of the thing being photographed? If I take a photo of the rose on my deck, and it looks tolerably like that rose, does that make my photo too "factual" to merit copyright protection? Do I have to add a haze filter or paint the petals green with polkadots in Photoshop before this becomes more than "minimally creative"? And as for the time factor, if three days isn't deemed enough time to write a "good" short story, photographers are surely screwed, for how long does it take to click a shutter?

What has me seeing red isn't the rose on my deck, however, but the nasty issue of "precedent" -- an issue that Google is callously ignoring in its quest to index the planet. Should Google actually win this particular argument, it sets a precedent. Now, right here, I'd better note (again) that I'm neither a lawyer nor a legal expert. However, it is my understanding that once a case sets a "precedent," that precedent may be used again in similar cases. So if Google manages to set a precedent, today, that "minimally creative" works, or "rambling" works, or works that are whipped out too quickly (by Google standards), don't merit "full" copyright protection, you can bet that tomorrow, someone else with far less noble motives is going to try to use that precedent to grab more of our intellectual property.

For example, I'm sure we can all remember the Tasini vs. New York Times et al. case, or the Random House vs. RosettaBooks case, where mega-publishers claimed to own authors' electronic rights even if no such rights had been granted by contract. Such cases invariably revolve around the publisher's desire make more money from an author's work, without giving the author any more money. And even though the mega-publishers lost in each case, writers are still the ultimate losers, because such cases simply encourage publishers to demand all rights to our material in the first place, whether they have any use for those rights or not. Thus, should the option to publish your novel on a Klingon data crystal ever arise in the future, you won't have the right to do so, even if Klingon data crystals aren't explictly listed in your contract.

Now, imagine a world in which your "ramblings" (such as blogs, diaries, letters, and so forth) are no longer protected by copyright law. If someone wanted to write a book based on your journals, or your letters, or your blog, they'd no longer need your permission; the "lack of creativity" or "simple ramblings" argument might be just the tool needed to snatch your work. If "factual" photographs no longer merit protection, then the images of the world's best photojournalists could be up for grabs, for aren't those images supposed to be "factual" by definition?

So far as I can tell, the folks at Google aren't fundamentally bad, greedy, copyright-snatching people. They aren't trying to make a fortune by publishing or selling your "minimally creative" short story or "rambling" blog. They're trying to create indices, and while obviously this must be a lucrative business, they seem to be sincere in the desire to make information "available" to the rest of us. But they have lost sight of a fundamental issue: In their alleged quest to help the world, they're ceasing to care about whom they hurt. They may not feel that they're doing a great deal of damage to a writer who got upset because his stories got cached, or a magazine that doesn't want its nude photos reproduced. But when Google tries to invoke arguments that threaten to redefine how copyright law is applied -- by throwing in issues of "quality" or "literary merit" or even "time spent" -- it is putting every writer, every photographer, every artist at risk. I don't think any of us are going to say, "Gee, thanks, Google, I lost my rights to my work, but what a great index!"

So, Google, if you're Googling this, stop a moment and think about who you're hurting. Personally, I don't think you're harming folks by caching their websites or indexing their headlines. But you are hurting the very people you claim to want to serve when you set in motion legal arguments that could affect, not just your latest lawsuit, but the rights of creators everywhere -- whether those creators are producing really great work that "merits" protection or the sort of stuff that ends up in a box in the closet. Try to remember where "content" comes from, and why. Copyright law exists to encourage the creation of new work by giving creators the right to determine what happens to that work -- and to benefit from the financial rewards, if any, that may be gained from that work.

There are already enough sharks trying to snatch those rights and rewards away from writers and other creators. By definition, the world of publishing is set up to ensure that of all the entities who "benefit" from the financial rewards of a piece of intellectual property, its creator is bound to benefit the least. So please, Google, do us all a favor and don't give them any more rope to hang us with!

For more information, see "Copyright Tussles for Google" at http://news.cnet.com/2100-1025_3-6102153.html

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