Google Wins a Court Battle

Gosalia wrote to let us know about an article which opens with: "In a legal win for Google, a federal judge dismissed a lawsuit filed by a writer who claimed the search giant infringed on his copyright by archiving a Usenet posting of his and providing excerpts from his Web site in search results." Thankfully, we can all still read Usenet articles on Google as well as other archive services.

Cash Grab Suit?

[Saeed al-Sahaf]

He sued over Google indexing and achieving a USNET post of his, so this means he isn't that technologically ignorant. To me, his suit smells like a cash grab. But it's also good he lost because it sets a useful precedent.

Re:Cash Grab Suit?

[Anonymous Crowhead]

It sets no precedent. Rambling, incoherent lawsuits that get dismissed do not constitute precedent.

50,000 John Does?
Racketeering?
Civil conspiracy?

The guy sounds like a nut job.

Re:Strange Decision

[Just Some Guy]

I don't see how creating an archive of billions of copyrighted works [...]

You left out "that were submitted to a store-and-forward global distribution system with the intent of disseminating them as widely as possible, knowing full well that they would be archived, folded, spindled, and mutilated".

In other news, every public mailing list in the known universe does the exact same thing. Gonna sue Yahoo! Groups because they're publishing the email that you deliberately sent to 1,500 strangers?

Content isn't that special...get over it

[doubledoh]

That's the way it should be. I'm tired of people trying to undermine most of the good reasons the web exists because they are worried about losing "control" of their content. Content in the context of 6 billion people (and growing) just isn't worth as much as it once was. Think about it. When you were a kid, getting a new CD (or tape/LP) was a pretty special event because the low-tech cumbersome delivery system limited the supply and frequency of new content. Now it's as easy as clickity click on your web browser (or p2p app) to find millions of different ways to entertain yourself. We have a growing sense that content is meant to be disseminated more freely...because it IS disseminated more freely...and exponentially so. Just the idea of being able to read newspapers from around the world for FREE would be crazy just 10-15 years ago...now it's a given. Same goes with content on people's web sites. Everyone's got a freaking webpage now (hell, I've got dozens...half of which I don't even remember exist)...so unique and special and limited content is being dwarfed by voluminous amounts of content in every possible variety and quality one can imagine.

The bottom line...your damn content isn't that special anymore! Stop suing people! Get over it...we probably already forgot about the content we "stole" or archived long before you remembered to call your lawyer. We moved on to the next thing before you could look up "cache" for FREE on dictionary.com.

wtf

[fftl4life]

the way i figure it, if you put it on the net and people wanna look at it, they will find a way, if you cant deal with it dont put you s**t on the interweb

Re:Strange Decision

[Anonymous Coward]

Thats not how NNTP works. You don't get to dictate how your messages are stored and distributed on usenet. This is like submitting a poster for an art contest and then suing after you found out that all entries were going to be displayed for the public, even though it was explicity stated that this is what would happen.

Google Groups is just nothing but a web-based usenet reader.

Re:Strange Decision

[Waffle Iron]

What if I posted a licence with my content stating that only nntp servers and individuals could redistribute what I have posted?

I've got a much simpler idea: If you don't want something to get freely archived and redistributed by countless 3rd parties outside your control, why don't you just try not posting it on Usenet?

Re:Strange Decision

[Scarletdown]

Thats not how NNTP works. You don't get to dictate how your messages are stored and distributed on usenet.

If he didn't want his posts archived, all he had to do was have the following line at the top of his post...

x-noarchive: yes

As for some of his site being quoted in Google's search results? That sounds like a classic case of fair use to me.

And further into the article...

In his lawsuit, Parker also claimed Google was liable for defamation because the search company archived allegedly defamatory messages posted by Usenet users and that Google was invading his privacy by creating an "unauthorized biography" of him, the court said.

I can't access Usenet (or Google Groups) from the base network here, so I can't look into this further. But if he was being some sort of asshat (spamming, trolling, etc), then the other users would have every right to call him on his bullshit, short of threatening him or commiting libel.

I'd comment more on this, but I need my sleep.

Re:Content isn't that special...get over it

[wall0159]

I hate DRM/copyright/etc as much as the next /.er.. but...

I think that the easy availability of 'content' has also cheapened it*. Sure, there are 6 billion or so people, and maybe they can all (one day) make content. The truth is, 99.99% of it will be complete crap.

Is it possible for people to sift through 10000 pieces of crap to find one useful/good item? No. People will do what they've always done - go with the crowd. One could argue that this is the 'service' that a centralised distribution system (currently known as a 'record company') provides, but I think even in the future these things will be useful.

For example, how would you find a good jazz album on p2p or bittorrent - if you don't know what it's called? both are really geared to shareing known material - if I made an album and posted it on either, there'd be bloody few downloads!

Sure, there are systems like last.fm, and to a certain extent they *can* replace current distribution systems, when coupled with p2p/BT/etc, but essentially people will still want some review process - that's why Google Scholar isn't putting academic journals out of business.

(*) Just on a side note - I was walking along listening to my ipod the other day, and I started thinking about how little attention I usually pay to the music that its playing. This is very different to our grandparents, who would've given total attention to music. Now, it's just another background noise (not always, of course). We're damn lucky - 4 to 5 generations ago there was *only* 'live' music, now, music's ubiquitous...

Re:Cash Grab Suit?

[tinkertim]

If nothing else it helps to show lawmakers some actual case law (in their lanugage) to say "store and forward" doesn't always imply the same thing, its the content that is of interest.

I hope if nothing else this case helps focus more on the content, and less on the delivery method. A parallel being torrents that bring you linux Distributions vs torrents that bring you copyrighted media.

Just shows, we really *dont* shoot the messenger these days :) At least not this time.

However you're right, its frivilous and sets no real precedent. But makes way for some perhaps :)

Re:Thankfully?

[jgardner100]

I disagree, Usenet was always store and forward, Google are simply using a ridiculously long expire time in this case. There was never any restriction on how long a site could keep the postings for, they were/are simply constrained by available disk space.

Re:Strange Decision

[Just Some Guy]

In the meantime, I'll give you the example that motivated my comments.

I don't think that's a good analogy, though. If Linus himself posted that code or those binaries, then he gave his explicit permission to distribute them. If the messages were posted by someone else, and their posting violated the terms of the GPL, then Linus could petition Google to pull them - just as the RIAA could petition Google to remove their artists' songs (if put there by someone other than the copyright holder).

I think a better analogy is Slashdot itself, which is basically a limited-scale Usenet workalike. Posters own their messages (read the message at the bottom of each page), but they post here with the clear and obvious knowledge that their message will be read by thousands of strangers. I truly can't imagine that any judge would support a lawsuit against Slashdot by a reader who claims that Slashdot doesn't have the right to display their message. Of course they do! That's the entire purpose of the system. And because the poster knew that before they sent their message, I don't think they'd have much recourse against Slashdot doing exactly what they were asked to do.

But again, you don't have the right to post content you don't own, and the legitimate owners would have every right to ask it to be pulled. That's an entirely different issue than this lawsuit, though.

Re:Cash Grab Suit?

[gad_zuki!]

Cash grab? I dont know his motivations but these are real questions that need to be answered. The legality of google's cache was always in question. For instance a person could delete a webpage but still find it in the cache. That person can ask a valid question about copyright, control, republishing, etc, etc.

The courts so far have ruled that these caches are legal and the search engine people are not doing wrong. This suit along with another one builds precendce over these types of concerns. So its been a long time coming.

Now people concerned with privacy can get educated about how to block robots/spider, how public the web/usenet is, and how to work around this.

Re:Content isn't that special...get over it

[doubledoh]

I agree my original point was a bit of a stretch. But really, it's about technology allowing the quality content producers the ability to disseminate their material to a much wider audience for alot less money. Almost anyone with 10 grand can easily produce their own album, film (digitally) a movie and edit it, and even make a tv show and distribute it globally (with bitorrent) for next to nothing. While yes, 99% of people won't produce anything (or at least nothing of great value), 1% of 6 billion is still alot of damn people (60 million?). 60 million people producing content and being able to distribute it globally...that's just nuts and its fantastic...but yes, inevitably it does dilute the value of content as it was spoon fed to us in the past by relatively few mediums. Today, almost any blogger can review almost anything. Hell, anyone can do their own "reviews" by using google. You can "browse" online and discover music just by using the "people who bought X also bought Y" feature on Amazon and other sites. In general, the overall masses of information that help you buy new products also dilutes the value of content in general by reviewing so much of it. It's like water. Water is damn valuable in the middle of the desert...but once you get to Seattle...you have so much damn water you get tired of it! Or at least, you don't appreciate your water (however good it tastes) quite as much because it is so plentiful and available compared to the desert. You made a good point about music being background music. I used to memorize the lyrics to every single album I owned when i was younger...now I couldn't even tell you the song titles of most of the tracks I listen to because I have so much music at this point because of its easy availability that I don't spend nearly as much time getting intimate with the tracks. Or, maybe I'm just getting older and less idealistic about music?

Regardless, content creators need to remember that whatever the reason, the consumer is definately being bombarded with massive amounts of content and no one piece of content can become supremely valuable anymore. We don't give it time to become valuable...we move on to something new before it even has a chance. The whole "MTV generation" attention span cliche is really kind of true. We want lots and lots of content, fast, and frequently. It's not that content was more valuable before, it's just that content creators used to have less competition because it was so expensive and/or difficult to distribute content in the past. Today, it's as easy as "Share this folder" or "post this blog" or what have you. The trick is to just keep creating exciting content constantly. The content providers that realize this instead of filing absurd lawsuits that pine for yesterday's paradigms will win.

Re:Gtalk

[publius_jr]

The explanation (http://mail.google.com/mail/help/chat.html#offrec ord [google.com]):

We know that sometimes, you don't want a particular chat, or chats with a specific person, to be saved. Most existing IM services give no indication of whether the person you're chatting with is saving your conversation. But when chatting in Gmail or Google Talk, you can go "off the record," so that nothing typed from that point forward gets saved in anyone's Gmail account.

Unless I am missing something, this is a perfect example of the ambiguity of their Terms of Service/Privacy Policy. The user may wrongfully infer from the user interface that "off the record" means "no one, whether a user or Google, can save this chat." Yet nowhere have I seen any promise that Google will not save the content of your chat, whether any option is selected or not.

Re:Cash Grab Suit?

[Anonymous Coward]

Maybe the cache has been in question, because it's not like your webserver calls up another server and says, "here have this, and give a copy to all of your buddies and tell them to do the same" but how can you go after a network which is designed to automatically do just that?

Re:Gtalk

[Crizp]

You're right, the chats might still be stored on their servers somewhere... just flagged as hidden. I thought about that before starting to use the service, but came to the conclusion that I don't care. Mostly because
1) US paranoia-legislations and assramming-acts do not apply here, thank FSM, and
2) Norwegian laws regarding information extraction by police/etc from service providers are reasonably strict, i.e. they need to have a case. Also,
3) Should I ever want to discuss something illegal I would either use GPG through email or encrypted IM anyway.

Re:Your Choice (X-noarchive)

[Beryllium Sphere(tm)]

Usenet was around a LONG time (1980 was the announcement of "A" news) before X-noarchive came along (1996? I can't find an earlier reference but I thought it was earlier). By now it's really unclear what a Usenet poster in, say, 1983 "intended". You certainly didn't "always" have that choice.

Parker doesn't have that excuse though.

Re:Cash Grab Suit?

[Anonymous Coward]

You can't unpublish a book... call all the libraries and tell them to throw the book away... how's a cache any different?

You publish or you don't.

Re:Google is in the right.

[Beolach]

would it be OK for me to post a leter to everyone in my apartment block asking them to reply if they don't want me to break in to their home and take all their stuf. If they don't reply, I'm doing nothing illegal by breaking in and taking it all, right?

I can't believe how often people make that argument. That's a horrible analogy. Browsing, spidering, indexing, or caching a publicly accessable website is nothing like breaking and entering. It's more like picking up a flier off a stack under a sign saying "TAKE A FLYER". If you don't want people taking your flyers, don't stick them under a sign saying "TAKE A FLYER": if you don't want people accessing your website, don't make it publicly accessable on the internet.

Re:Your Choice (X-noarchive)

[pomo monster]

"You always had a choice in the matter via the 'X-noarchive' flag" ...unless someone quotes your post in a reply.

Re:Cash Grab Suit?

[Anonymous Coward]

Cash grab? I dont know his motivations but these are real questions that need to be answered. The legality of google's cache was always in question. For instance a person could delete a webpage but still find it in the cache. That person can ask a valid question about copyright, control, republishing, etc, etc.

The Internet is not a book, a movie, or a CD. As soon as people recognize that fact, half of the stupid legal issues and lawsuits will go away. All (sane?) copyright law was written and all the major cases were heard before the Internet existed, but now that routers and switches make copies of information as they forward it, proxies and internet browsers cache information, RAM and swap files store information, and there is very, very little practical difference between forwarding a URL and forwarding the content it points to, a lot of copyright law sounds like nonsense.

Re:Thankfully?

[_Sprocket_]

...the problem is with archiving: USENET was originally not intended to be archived, and the fact that it is being archived has greatly changed it.

Undoubtedly, there are those who never considered the possibility of USENET being archived. But really - those people just weren't thinking things out. Keep in mind that Google's archive is complete as it is because of archive donations from various individuals who, on their own accord and at their own expense, began archiving USENET well before "Google" or "Deja News" was first uttered. USENET archives have existed as long as USENET.

Re:Strange Decision

[Rakishi]

Does this implied license necessarily give Google (or any other usenet provider) (henceforth "Google" for short) the right to change the message's distribution method from an nntp based distribution model to a web based model?

That is a question although I don't see why not; other usenet servers have web based access as well I believe. If Groups still propagates messages that get posted to it then it only has a different interface. Again it is a reasonable extension of how usenet works, and does'nt fundamentally go against it the design.

If so, what the content provider posts under a license forbidding delivery through a web-based distribution model? This doesn't sound like an unreasonable restriction.

What is web-based? Can they limit my client? Can they limit what my client does? If I write a web based interface to access an nntp server am I infringing? What if my usenet server writes such an interface but it communicates using nntp? What if it accessed the data directly but looks exactly the same? What if it accessed the data through nntp then caches it all (as many usenet viewers do), I it still infringing?

The implied license may mean that reasonably it included web based clients, especially since google groups is quite popular I assume so by posting to usenet you reasonably must assume it will go to groups. I think usenet has a non-archiving flag, and the most I see google being forced to do is manually check posts upon request and remove them if the contents state different terms. Again this would be a reasonable assumption upon posting to newsgroups since it's quite impossible for google to check every single message.

Nonetheless for the vast, vast majority of posts this does not apply.

Two things motivated my interest in this case. First is that Google lost its case regarding Google Images, as mentioned in TFA, due to arguments similar to mine.

Not really that case involved images uploaded illegally to a website by someone who was not the copyright holder of the images. Not to mention that the case will be appealed and these things can often change. Nonetheless Google Images is quite a bit more fuzzy than Google Groups. Usenet servers function almost exactly to Grousp except with a different interface, however that does not hold true for Images. Nonetheless, the court seem to not agree with you (from TFA as well):

" The Perfect 10 lawsuit has received a high level of public attention, not least because of the 2003 Arriba Soft decision from the 9th Circuit Court of Appeals. In that ruling, the court sided with an image search engine over a photographer who claimed the automatically generated thumbnails amounted to copyright infringement."

Second is that many works in usenet are copyrighted using relatively strong licenses, such as the GPL, that could potentially cause trouble for automated services like these, or GPL licensed works, should the shit hit the fan.

Not really as I don't see why the GPL would prohibit such copying of messages in full. If a user posts content that they do not have a copyright on then that may be grounds for the removal of the post, although even then GPL code would probably be free to post (assuming the license is mentioned and so on). Even if the lisence was more restrictive it doesn't matter: "Yay, I can view your code on a usenet server; if I compile it or add it to my app or copy it somewhere else I'm potentially infringing on your copyright..."

Re:disturbing asymmetry

[PietjeJantje]

That still leaves caching web pages, in their frame. Even if that page says 'Copyright Megadodo 2006, All Rights Reserved'. In the Netherlands, there are precedents of that setup being forbidden anyway, cache or not. Those sites were making money by showing others content in their sites using frames. I wonder how this is different from Google. I wonder why people thought with the frames setup: this is NOT done, but defend the Google setup, because it happens to serve them. Also, I wonder how I can turn this precedent into a p2p service. I'm not huge nor not evil, so that would give me a disadvantage in court as the judges always seem impressed by folks like Google. However, it seems the key is automation here. So, when I -automagically- cache stuff which I happened to find somewhere on a page or someones drive, it's OK?

Re:Strange Decision

[Rakishi]

Unless Joe provided his work to Google on that CD, along with an explicit transfer of copyright to Google, Google does not have copyright for that work. Joe and Google never arranged to transfer copyright, and Joe never lost copyright by publishing his work.

However Joe gave limited reproduction rights to all usenet servers, and google may be considered one within the limits of being one (ie: no books based on his stuff)

The fact that some third party burned Joe's work to CD and then gave it to Google does not establish a relationship between Joe and Google, nor does it establish a relationship between Joe and the third party that made the CD. In other words, the third party violated Joe's copyright when they distributed his work to Google.

Why? If google is a usenet server then the third part who archived the content in accordance with general usenet practices did nothing wrong. They already had implied permission to do this. I was simply pointing out that such storage was a practice before with usenet, and as such google cannot be chastised for having a permanent record since it already existed (and as such posting to usenet must involve such implied permission).

The works for hire bit you mentioned involves a consideration (payment) for the right to the works. Do you believe Joe had a work-for-hire arrangement with Google, possibly years before Google was incorporated? :)

It was an example; want a better one then here: webrowsers have implied permission to copy web pages into cache both in ram and on the hard drive. This is, ignoring implied permission, clearly copyright violation especially in hard drive cache. Nonetheless web pages do not need to give explicit permission and this implied permission may even override explicit permission.

Re:Thankfully?

[1u3hr]

I'm confused--are you trying to make a legal argument? A technical argument? Or what? Because I'm not. I'm saying: USENET was used by its users with the expectation ...

I'm not making a legal argument. RFCs aren't legally binding. But they would give you the expectation that implementors would follow them. So if you weren't relying on documented rules, what was the basis for your expectation?

That's the ground rules most people assumed,

Maybe you did. How do you know "most people" did? I didn't. I used an ancestor of Usenet back about 1979, and the modern version since the early 1990s. For one thing, individuals have always kept their own archives of groups that interested them. Hardened trolls and flame warriors delight in digging up ancient posts and quoting them back, preferably out of context.

Clearly, companies have wide latitude in archiving, repurposing, and republishing anything individuals put on the web or on USENET, without the permission of those individuals. I think that's bad

Why is this "bad"? I think it's excellent. Usenet archived messages have solved uncountable problems for me. You have plenty of options: you can post under a pseudonym (which I do mostly to avoid spammers); you can use the "X-No-archive" header which Google and some others (but not of course the NSA et al) will honour; or ask Google to delete your message from their archive. But once you publish something, whether on paper or the web, you can't unpublish it.

Re:Gtalk

[Fëanáro]

Should I ever want to discuss something illegal I would either use GPG through email or encrypted IM anyway.

Which in turn makes it easier to prove it was you who sent the message, for example if your partner later decides to betray you.

Re:Strange Decision

[Anonymous Coward]

"Because as a copyright holder I have the right to dictate the terms of redistribution of my content, and I want to?"

So, let's get this straight, when you post to Slashdot, you believe that you have the right to dictate that Slashdot only reproduce "your content" on the screens of people who've bought an exclusive $500 license from you, and that the Slashdot admins are responsible for enforcing this bizarre constraint because, you're a copyright holder?

In other words, you're an idiot.

If you don't want your content reproduced on Usenet (including Google Groups) then don't post it to Usenet.

Re:Gtalk

[Toby_Tyke]

3) Should I ever want to discuss something illegal I would either use GPG through email or encrypted IM anyway.

I prefer to discuss all my illegal activities using the RL protocol.

Re:Gtalk

[poot_rootbeer]

Should I ever want to discuss something illegal I would either use GPG through email or encrypted IM anyway.

What it you want to discuss something entirely legal, but private? Like talking to your lawyer about a case brought against you? Or discussing your child's medical condition with your spouse?

Are you really okay with Google keeping a record of such conversations?

I'm not, which is why I wouldn't use Google's services for anything which needs to stay confidential.