Our New Gizmo
posted by Frank Pasquale
At Concurring Opinions, we never stop thinking about ways to improve your reading experience. Every so often, we actually come up with something. Our latest innovation: the Snap Tool, which turns your mouse into a previewing projector of any link on the page. Just roll it over a hyperlink, and a little pop-up will appear, displaying what the underlying webpage looks like. (The featured preview illustrated above is the link to “Paro” in my post below.)
We can thank some copyright exceptions for the tool. A copyright maximalist might deem Snap’s previews a “derivative work,” forcing anyone who uses it to ask for prior permission from the previewed website in order to display this thumbnail version. There’s a lot of good law for the opposite proposition–namely, that previews amount to a fair use that does little, if anything, to harm the value of the original work. But, as Ann Bartow has noted, there are some groups seeking to reverse that perfectly sensible doctrine. As far as I’m concerned, tools like Snap are one more reason why we should hope Google (perhaps the world’s premier image previewer) beats them. In today’s world, we need the best tools for processing and mapping information that we can get.
January 25, 2007 at 3:36 pm
Posted in: Administrative Announcements
Print This Post
Responses (4)
Bruce Boyden - January 26, 2007 at 11:18 am
Well, in order to beat them, Google and similar defendants will need good answers to some hard questions — e.g., when do you evaluate (under the 4th fair use factor) whether there’s a market for the use at issue? When the technology is first developed? That seems a little early. Sometime later? How later? In Kelly v. Arriba Soft, there was no market for thumbnails; now there is (at least for porn sites). How significant a market in comparison the value of unrestricted use? How do measure the value of unrestricted, uncompensated-for use, anyway? Is there room to conduct that weighing under the fourth or some other factor?
Frank - January 26, 2007 at 11:34 am
As for the “effect on the market;” I’ve argued that the Sony approach is best (in my Case Western article); essentially, if the new technology increases the overall value of the copyright, across all uses, let it win the fourth factor. I think Trotter Hardy has a similar approach.
In terms of measuring the value of the use: that is a real imponderable, because it’s all circular.
Let me throw back a few (perhaps unfair) questions:
1) Should courts be promoting new markets for porn? Admittedly, Perfect 10 is probably a lot better than its competitors, but isn’t it bizarre that courts should stretch to try to encourage this business?
This may seem overly “substantive,” and not content-neutral enough for 1A scrutiny, but there was a great note in the Harv. L. Rev. recently against copyright in ads…precisely because they often constitute a “bad,” not a “good.” Bartow’s also questioned whether copyright law protects porn too much…in a very recent article (whihc I sadly can’t remember the title of).
2) Where do licensing markets stop? And should we at least agree with Lemley that judicial recognition of a licensing market should at least be predicated on the existence of such a market?
Bruce Boyden - January 26, 2007 at 12:11 pm
Re: 1 — surely that can’t be right. Surely the extent of copyright rights shouldn’t be left to the individual judge’s intuitions about whether the work is socially valuable or not. To pull in a discussion from another thread, if I were a judge, would that mean that I should permit broader use of the last 1.5 hours of “AI,” which sucked, than the first 30 minutes, which was good?
(Your response, of course: it is right. And stop calling me “Shirley.”).
Re: 2, I missed your article, thanks for the pointer. I think there’s a few different issues here, and we should distinguish between them. One is how to measure the “effect of the use upon the potential market,” and whether that includes or does not include the use at issue, which raises the circularity problem. A second is how tangible or certain a “potential,” but currently unexploited, market has to be. A third, and the one I really meant to raise in my comment, is WHEN is that analysis locked in, if ever? I.e., at time 1, there is no market for the use that passes whatever test you use. Defendant wins, at least on factor 4. Now at Time 2 there’s a market — someone’s figured out how to make money off of thumbnails. Are you locked in by the holding at Time 1? Or do defendants at Time 1+n now lose on factor 4? I.e., when if ever in a new technological field do expectations become settled as to what the scope of the owner’s market is?
Miriam Cherry - January 28, 2007 at 12:57 am
I don’t know anything about the IP questions you raise, but that Paro sure is cute!!
Leave a Reply