Tim Lee

The Journal Fails to Do Its Homework

Neat! The Wall Street Journal appears to have cited my DMCA paper in today’s editorial. (It’s behind a paywall, unfortunately) Unfortunately, although I always appreciate seeing my work cited, it doesn’t look like they read read it very carefully:

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.

This wasn’t really the point of my paper, nor is it just my opinion. Rather, I was quoting the decisions of the Supreme Court, which ruled in 1994 that “transformative” uses of copyrighted works tend to be fair, and the Ninth Circuit, which ruled that thumbnails used in image search engines are such a transformative use. And I wasn’t talking about the YouTube or Google Book Search controversies, which involve different issues than the reverse-engineering cases I was focusing on in my paper.

As I’ll explain below the fold, the rest of the editorial makes the same kinds of mistakes.


The fundamental problem with the editorial is that it treats all of Google’s properties–YouTube, Book Search, Image Search, etc–as if they present a black-and-white issue of whether we should have “rigorous enforcement of intellectual-property rights.” This leads the Journal to write things like this:

Google claims “a legal safe harbor” from copyright infringement under the 1998 Digital Millennium Copyright Act, which allows Internet firms to provide a thumbnail of copyrighted material.

If the DMCA has a thumbnail safe harbor, that’s news to me! Most likely, they’re confusing the DMCA’s “notice and takedown” safe harbor, which relates to user-uploaded content, with the Kelly v. Arriba Soft decision, which held that thumbnails in image search engines are fair use. The former is mostly relevant to YouTube. The latter is relevant to Google image and book searches. I don’t see any way in which the two are related.

The next sentence is equally confused:

The firm also asserts a right to reproduce and distribute intellectual property without permission as long as it promptly stops the trespass if the copyright owner objects. That’s like saying you have a legal right to hop over your neighbor’s fence and swim in their pool–unless they complain.

It’s not clear if this is referring to Book Search or YouTube. If this referring to the Book Search dispute, this is exceedingly misleading. Google is not “reproducing and distributing” books. Rather, it’s distributing snippets–a few lines of text that gives the user context for his or her search term. Snippets exactly like the blockquotes I’m using in this blog post, or the snippets of text that Google’s search engine for the web.

On the other hand, if this is referring to YouTube, the editorial is just wrong on the law. The DMCA’s safe harbor provision clearly does give an ISP the right to host infringing content uploaded by its users, as long as it responds promptly to take-down notices. If the Journal doesn’t like this provision of the law, it’s welcome to write editorials calling for revising it (if they do so, I’d like to talk to them about revising section 1201 as well) but they shouldn’t complain that Google is making use of that provision.

These are questions that can’t easily be answered by all-or-nothing value judgments. Clearly, it would be wrong to say that Google has an unlimited right to do as it pleases with copyrighted materials. (Google, incidentally, has never said anything of the sort) But it’s equally wrong to take the position that the Journal appears to be taking–that no one should be allowed to do anything with copyrighted materials without getting permission first. That’s not how copyright works, and it never has been.

December 1, 2006 | Comments |

Viewing 12 Comments

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    Oooh, snap.

    Seriously, nice that you got cited; unfortunate that it was done in such a sloppy way.
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    I read the WSJ editorial on the way home from work yesterday. I've always disliked the WSJ's blustery editorials - in general, they read like Rush Limbaugh sounds - and this one did not disappoint. It is full of weak analogies, mischaracterizations, and sarcasm masquerading as insight.

    Tim has nailed a bunch of things wrong with the editorial, and I hope he's got a letter to the WSJ editor in the pipeline. I just want to pile on by mentioning how the Journal leveraged the metaphor of "intellectual property" to buttress their argument. They claim that Google's use of the DMCA Safe Harbor defense (which is pretty clearly spelled out in the law) is tantamount to claiming it's okay to trespass in someone's swimming pool as long as the owner has not complained. Sounds like a good argument in a homely sort of way, but in reality it's completely irrelevant because the laws concerning trespass on someone's land and the laws on copyright infringement are two completely different, unrelated, uncorrelated bodies of law.

    If you look at the arguments of IP zealots, you'll find the property metaphor leveraged this way all the time. Usually the intent is to connect with the reader on an emotional, rather than intellectual level - to make the reader think of how they would feel if their bicycle were stolen or their house were broken into. Young people who've grown up on the Internet are generally pretty resistant to that jive, but it can be very effective with middle-aged property owners (like judges and WSJ readers), especially if these people have never had reason to question the metaphor implicit in the term "intellectual property."

    Clearly if we're going to progress toward a more sane, open system of copyright and patent rights, the metaphor and the term need to be questioned. Copyright and patent are as American as the constitution, but "intellectual property" is not. It is not a part of the Constitution, or even of American statutory law. It is a recent addition to our language, largely imported from Europe. It is as much a PR term as a legal concept. It is deceptive, and should not be allowed to stand unchallenged.
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    Say it with me: 'limited, government-granted monopoly'.
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    Doug, check out the works of Prof. Adam Mossoff, who has written on the history of the term "intellectual property." Surprisingly, the term appeared in SCOTUS decisions very early on in patent/copyright jurisprudence.
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    I've looked at two of Mossoff's papers on the subject of patents as property (including the provocatively title "Who cares what Thomas Jefferson Thought about Patents") and I see no references to nineteenth-century use of the term "intellectual property" by the Supreme Court. Given the arguments Mr. Mossoff is trying to make, I think he would highlight such usage of the term prominently in his major papers, if he could find examples.
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    Sorry, I meant Prof Justin Hughes. Check out part III of this paper: Hughes, Justin, "Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson" . Southern California Law Review, Forthcoming Available at SSRN: http://ssrn.com/abstract=934869.
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    Okay, I've reviewed Hughes' article. It is interesting and I look forward to reading it more throughly. However, the only use of the phrase "intellectual property" that he finds in a 19th-century SCOTUS decision is a quote from a 3rd-party, without any context provided.
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    Yes, context would be great, but Prof Hughes uses the 1845 and 1873 SCOTUS decisions, as well as other early incidents of the term "intellectual property," to show that it is not a *modern* construct resulting from the "propertization" movement that copyright/patent critics cite as arising over the past 20 years.

    Note that Professor Hughes does a great job of showing how a group of scholars (some of whom he no doubt admires greatly) cite questionable works in their assertions that "intellectual property" is a new term.

    Another important item from this paper is how it traces early use of the term "piracy," which copyright critics often criticize as a construct of Hollywood. Prof Hughes shows that "piracy," like "intellectual property" is not a result of the purported propertization movement, and that these terms were not introduced recently to distort or misrepresent the substantive issues.
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    There is no 1845 SCOTUS decision mentioned. In the 1873 decision, Hughes admits "intellectual property" is not a term used by the justices, and it does not appear to be a citation of any sort of legal writing. Other early uses of the term appear to be somewhat few and far between. Hughes relies more on the prevalence of related terms like "literary property" or just "property" but even there his research shows a somewhat hockey-stick-shaped curve with an enormous increase over the past two or three decades.

    I find Hughes'
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    The 1845 SCOTUS decision is one Hughes cites Prof Lemley as acknowledging re historical use of "intellectual property."

    Misunderstanding of "intellectual property" stems from the "property" term. Correct? Thus, Prof Hughes' findings on "literary property," "industrial property," and other forms of "property" to signify copyrights and patents does add to his point about the purported modern propertization movement.

    You are right that there is a J-curve in use of "intellectual property" though, but I believe Prof Hughes acknowledges this.
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    The 1845 court case is from a Massachusetts court, not the Supreme Court.

    Thanks for bringing the paper to my attention.
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    Your article is very informative and helped me further.

    Thanks, David

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