Googlezon and Copyright
A while ago, I linked to the clever short (8 min) flash movie, EPIC - that postulates a world changed by new media. 'EPIC' stands for The "Evolving Personalized Information Construct" - "the system by which our sprawling, chaotic mediascape is filtered, ordered and delivered. Everyone contributes now - from blog entries, to phone-cam images, to video reports, to full investigations." The movie postulates a world in 2011, where the news outlets of the world lose control in the face of 'Googlezon' - an entity formed through the combination of Google and Amazon, which invents a clever new technique that tailors news content to the user: "Googlezon's computers construct news stories dynamically, stripping sentences and facts from all content sources and recombining them. The computer writes a [personalized] news story for every user."
The movie predicts that in 2011, the New York Times and other media whose content is not customized to the user go the Supreme Court, "claiming that [Googlezon's] fact-stripping robots are a violation of copyright law." In the movie ... well, to reveal the result would be to spoil the ending, wouldn't it? Go watch the film. It's short, clever, and thought provoking.
Now Julie Hilden at Findlaw has a contemplation on the various copyright issues involved (warning, she does spoil the ending... so watch the movie first).
Hilden is writing from a US legal perspective, appropriately. But reading her column got me thinking - because our law on copyright is different, and might lead to some different outcomes. So there's some value to thinking about the issues from an Australian perspective, too:
First, could the New York Times argue that copyright in material in newspapers protects the originality of the material in the newspapers - originality being measured, in accordance with Desktop Marketing, as the combination of originality of expression, but also the investment - the blood, sweat and tears - of the creator of the newspaper. Here Australian law differs from law in the US, in the sense that we understand 'originality' differently, and as more readily linked to investment and effort, not just expression. If facts from online newspapers are stripped, and combined, is the fact-stripper (Googlezon) taking the 'originality' of the work? Arguably yes, in Australian law. Arguably infringement would be easier to find under Australian law than under US law - although it's by no means a clear case. Of course, this renders all the more pertinent Hilden's claim that:
rather than being an engine of plagiarism, Googlezon's fact-stripping bots might be better seen as an engine of compilation.
(Hey, that means that perhaps our courts are not behind the times with their decision in Desktop - they're ahead of their times - they are creating a copyright law more fitted to the Internet than the US law, according to Hilden...)
Making compilations like this illegal, as copyright infringement, would challenge the status of a lot of traditional research - such as virtually any doctoral thesis, nonfiction book, academic paper, and on and on. For this reason, I agree with Sloan and Taylor that the Supreme Court would likely rule for Googlezon - not "old media" - in its Supreme Court case.
But it's also possible the Court - or, ultimately Congress, in the wake of the Court's decision - would rework copyright in a way that better fits the Internet.
A second issue is whether a defence would apply here - could Googlezon claim, even if it were infringing, that it was doing so for the purpose of 'reporting news' and was thus engaging in 'fair dealing'? Arguably yes, right? It is reporting news to its readers. But then, of course, the question becomes whether the use is fair. Now, the Full Federal Court focused very little on the question of fairness when they made their decision in The Panel case a couple of years back. Would a Googlezon type case cause them to rethink that approach? Perhaps. Arguably the whole dealing envisaged would act as a complete substitute for the traditional media, and hence is a kind of leach...
Oh, and by the way. What kind of infringement is it when a 'robot'/electronic spider does all the selection, clipping together, and delivery....?
