Sunday, February 6, 2011

Flagrant breach of copyright by TeacherSoft

There is a really fine company out there – we will call it TeacherSoft.  TeacherSoft wants to build the best possible education platform and market it globally.

To do this it inserts in 100 thousand classrooms a classroom recorder.  The recorder records everything the teacher does.  TeacherSoft of course has the consent of 100 thousand teachers to insert the recording equipment.

The recording equipment is very powerful.  Not only does it record what the teacher says – but using speech recognition software it converts all of that material to text and it uses that text in its own business.  

TeacherSoft also – in building the best possible education platform – uses many other signals.  For instance it uses exam results sometimes adjusted for the socio-economic status of the kids.  

The teachers are of course informed about TeacherSoft – and they endorse its programs.  TeacherSoft of course shares some of the benefits of that program with the teachers.  The teachers in the process pass the information freely knowing it will be shared.  That is of course the deal.

Now one particularly fine teacher gets a little stroppy when her teaching technique is featured heavily in TeacherSoft's lucrative platform.  She thinks she should be entitled to share in the wealth.  Alas she does not have a leg to stand on – she consented to the use of any copyrights she owned.

Joe the novelist

Joe is a children's novelist.  The novels are not long – a couple of thousand words at most.  They are a length that a teacher can read them to a kid on a hot Friday afternoon – when the kids are a little rowdy and are not really up to arithmetic lessons. 

Joe's novel is of course incorporated into TeacherSoft's database.  A teacher read it aloud – and through sophisticated speech recognition software the whole novel got included in TeacherSoft's teaching kit.

It's not an exact copy of Joe's novel though.  The teacher read it but mispronounced a few words and took breaths at the wrong places and hence the punctuation is slightly incorrect.  Also – because TeacherSoft's systems are not perfect the spelling is incorrect in a few places.

But it is a copy of at least a part of Joe's novel.

Joe objects

Joe doesn't like TeacherSoft making profits from Joe's novel.  Joe owns the copyright – and he politely asks that whenever TeacherSoft notices Joe's novel in their database they exclude it.

TeacherSoft does not accept Joe's claim.  They say they did not copy Joe's novel.  They just watched the “teacherstream”.  They don't see one part of the teacherstream – the part based on novels – should be prioritized or not prioritized over any other part of the teacherstream.  The novel is just a small part of a teacherstream.

Joe is upset.  His novel has been – in part – copied.  He seems to have no redress other than issuing a cease-and-desist.

Is it copyright abuse?  

I think this is obviously copyright abuse.  The copy of Joe's novel – or even parts of it (as long as those parts do not fit into a fair use exemption in the copyright law) are breaches of copyright.

TeacherSoft argues that it has not breached Joe's copyright.  It has permission from classroom teachers to use their teacherstream.  They just got the material from the teacherstream and they have permission to use that.

So what.  They don't have Joe's permission.  And Joe has sent a cease-and-desist letter.

And if TeacherSoft were to continue to ignore the cease-and-desist then TeacherSoft would be liable for breach of copyright.  If this were a case of a lot of little Joe's and one big nasty corporation I would even go as far as to suggest that a visit from criminal regulators would be appropriate.  Of course it would never get to that – but if done on a grand scale and with flagrant disregard for copyright it would be criminal.  

The Microsoft analogy

This is – of course – a direct analogy to Google's claim that Microsoft is breaching their copyright.  This is a claim that almost all my readers have disagreed with – but which I think is a lay-down.  

Ed Harrison (from the wonderful Credit Writedowns) refers me to an article by Danny Sullivan.  Sullivan writes more about Search than anyone else on the web – and knows his way around.  His argument is this:

The Search Signal Doesn’t Overrule Other Signals
Let’s step back. There’s no “Google signal” but rather a “search signal” that Google activity is mixed into. That search signal is further mixed in with other ranking signals, a dilution that is crucial to why Bing so strongly rejects Google’s claim that it is copying its results.
Most of Bing’s searches — popular so-called “head” searches — are not heavily influenced by the search signal, Bing says. There are many other signals that come into play.
“Movies” would be an example of a head search. That’s a search that’s done by thousands of people each day, and a search topic with lots of “signal” to measure. Bing can determine if pages are relevant to that term based on the words that appear on the page itself; how many people link to some of these pages with the word “movies” in the link; how authoritative those links seem to be, and more.
Bing can also examine how people click on its own results that it lists in response to that search. If a page doesn’t get as many clicks as would be expected, it might get dropped further down on the list. Pages that get more clicks than expected can be a sign that users find them more relevant than Bing’s ranking algorithm did originally, and so that can be used to boost them.
In addition to these and other signals, Bing can also turn to the surfstream to perhaps give a boost to pages that it sees are well visited by Internet Explorer users.
“Bombilate” would be an example of a “tail” search, a search that’s rarely done, and on an unusual topic. Here, there are fewer signals to assess. Only a few pages might be found. These pages might have few links pointing at them. Since the term isn’t searched for often, measuring clicks on Bing’s own results might not help much much. This is a case where the surfstream — as well as the search signal within it — might count more.

Microsoft is arguing that there is no “google search signal” there is just clickstream.  They don't distinguish Google clickstream from any other clickstream.  That they wind up copying part of Google's database (and a small part at that) is an accident of clickstream – it is not copying.

Ok – and TeacherSoft argues that they are not copying novels – they are just using teacherstream.

Microsoft argues it has permission to copy a “clickstream”.  TeacherSoft argues it has permission to copy a clickstream.  But they do not have permission from Google or Joe respectively – and it is Google or Joe's copyright they are breaching.

Microsoft's argument is ultimately very weak.  Google has copyrighted search results.  They wind up in Bing's search engine.  Joe has a copyrighted novel.  It winds up in TeacherSoft's education material. Both Google and Joe have a valid claim for breach of copyright.  It does not matter how technologically sophisticated the method of copying.  The novel and Google's data are copyright and they are copied.

Microsoft is also a huge hypocrite here – it regularly cooperates in criminal prosecution of people who breach copyright.  Yet Microsoft flagrantly breaches copyright – and ignores a cease-and-desist.  

I opposed the original anti-trust action against Microsoft.  But this time – and much to the annoyance of most my readers – I really do think the Justice Department should become involved.   

I know my readers disagree with me.  That is kind of nice.  Part of the joy of this blog is to find smart people who disagree with me - and I have found them here.  But I still don't think I am wrong.


The original Google release is here.  And Microsoft's reply is here.


Anonymous said...

Ok, time to substantially disagree with you some more. Let me prefix this with the statement that I really like your blog, certainly won't stop following it but that I still think you're dead wrong :)

I do, however, agree that this exchange is all sorts of fun. Kind of like being on an internet debate team. Here goes:

I generally am suspicious of arguments that work by metaphors "See, if someone did this thing that is superficially similar but in substance entirely different from what we're actually talking about, this would be the logical consequence". True, but not really relevant.

As always, the devil is in the details.

First off, Bing is not copying Google search results or using Google results.

Secondly, Google doesn't hold a copyright on its search results.

Thirdly, Google is doing the exact same thing it accuses Bing of doing.

The crux of the matter here is that in the examples you construct, the work of one of the observed constitutes a substantial part of the product the hypothetical company is selling.

This is where the comparison breaks down. As Bing points out, the potential impact from the Google signal is minuscule. If it wasn't, we'd see substantially more similarities between search results and ordering, which is sort of beside the point if you're looking to differentiate your search engine.

Should the hypothetical teacher in your example be entitled to redress and revenue sharing for every use of the word "and" in TeachingSofts materials, because she used it in her interviews?

What if the hypothetical Teacher invented a new word called "hwgquuia" and pointed to it's presence in one of the interviews in the TeachingSoft corpus that she asked specifically to be included as evidence that TeachingSoft was just coping her?

Another aspect in which the comparison breaks down is the role of the actors. In the hypothetical examples, we have David against Goliath scenarios.

In the real world, both Bing and Google are huge faceless companies with enormous power invested in search. It also so happens that Google is the Goliath and Bing the David in this case.

What if the teacher in the hypothetical example also sold teaching materials through YourFriendlyTeacherCorp, had a larger market cap than TeachingSoft and reused parts of the TeachingSoft materials in her programming?

Another aspect of this case is the language: the assumption of intent behind "copying" and "cheating" is something rather hard to demonstrate, and, given that only 7 out of 100 terms that Google attempted to inject into Bings corpus succeeded, hard to believe.

As for the claim that Google does just the same, the Google toolbar and the Chrome browser are simple examples; as of this date, Google apparently also indexes a whole lot of Bing automatically - see for a discussion.

Now, I see this as more of an accident than intentional, but it represents a much more blatant act of copying than the alleged indirect copying of single associations via user observation, especially given that there is a robots.txt file that asks search indexers not to crawl Bing.

Google itself has a helpful site that points out that robots.txt is just a guideline and suggests adding the metatag NOINDEX to pages that don't want to be indexed. As an aside, it is interesting to note that Google search results don't contain this metatag, so Google itself isn't even attempting to dissuade copying.

Be that as it may (and I am a big fan of never attributing to malice what I can attribute to carelessness and lack of attention), all of this raises some questions about the motivation behind google's PR push.

My take on the situation is that Google are noticing that their leadership in the search space is seriously threatened by incumbents like Bing and is trying to defend itself by some adroit non-technical means.

David said...

Not everyone disagrees with you. As a programmer it was so obvious to me that Microsoft is in the wrong that I did not think it worth the effort to even comment.

John Hempton said...

To anon. I disagree with you on all three points.

1. Bing is clearly copying. Not much. Google got less than a 10 percent hit rate on their test. But there was clearly and unequivocally a copy made of some Google results. They might be doing so through a perverse method (clickstream) but it is a copy.

2. Google does own copyright to its results. Otherwise you could start a rival by scraping them. That is trivial at law.

3. Google does use clickstream. All they are asking is that the clicks that follow from a Google search gets removed. I presume they do this for Bing.


John Hempton said...

Oh, and David, thanks.

I don't actually understand why this is not obvious - but it clearly is not because reasonable people take the opposite view.

Anonymous said...

"2. Google does own copyright to its results. Otherwise you could start a rival by scraping them. That is trivial at law."

It's certainly true that Google holds copyright over the search pages generated by its servers. However the click stream data is not a copy of the results pages - it is closer to a factual statement that a certain page contains certain terms.

In many countries plain facts are not copyrightable. The phone company does not have copyright protection over knowing or writing down (creating a derived work) what my phone number is even though I must have originally learnt it from documents supplied by them on which they could try to assert copyright.

In some countries (such as EU members) there are separate "database rights" whereby intellectual property rights are created in databases of facts, even if each fact is not individually copyrightable.

IANAL but I think this matter is not really trivial at all from a legal perspective and could very well be decided differently in different countries.

Anonymous said...

Hi John,

Ok, another party in disagreement :=)

In the first instance, perhaps another way to think about it may be to explicitly define what the "search" result delivers and so what is being copied.

Let us stipulate (for the moment) that Google "owns" (whatever "owns") means in this context the right to the "original" (once again, whatever "original" means) association between a given word (say "blaguta") and a particular web page.

Getting that link from Bing can be interpreted in one of two ways:
1. The page which Bing points to is intrinsically associated with the word "blaguta". or
2. No such intrinsic association exists, but it so happens that some people in their behavior make the association (and in this case they learned to make that association by using Google).

I hope you'd agree that Google has no legitimate claim (whether copyright or otherwise) to the insights Google users obtain by using Google's search tools. If so, then if we accept the later "conceptualization" of a search result, Google has no case.

A second reason your TeacherSoft parallel breaks down requires one to remember that the only rights Joe the Novelist has, are those that are explicitly granted to him by the relevant legislative instrument. In particular, the "rights" you are attributing to him in your example are a recent extension ... a few decades ago, Joe's copyright simply would not have extended to a recording of his text work. So, if we look at the pure "black letter of the law", I'm pretty sure that search results (not being a "creative work") simply wouldn't be covered.


specnaz said...

What you are saying isn't quite right.
Google does not own copyrights on its search results. Google thrives on fair use, hence you can fairly use Google's fair use content. Same thing goes to Bing.
However, WolframAlfa's results are copyrighted.

Bing's copycat action does not infringe copyrights. It's embarrassment. Now Bing can proudly show --powered by Google-- on its start page.

About scraping:
What about metasearch engines, like this one:
They take "inspiration" from here and there.

duaneg said...

I'm also a programmer and also think it trivially obvious that MS is wrong and should be illegal. I don't understand the US legal system well enough to know whether the courts would ultimately agree, but I suspect they would.

Anyhow, let me try to construct a slightly more apposite analogy:

Imagine two financial services and media companies that are bitter competitors, let's call them R and BB. You install R's software and, with your knowledge and consent, it started monitoring your computer. Amongst other things, it scrapes data from BB if you happen to be logged into it. That data is sent back to R, which then incorporates it into its own data and presents it back to their users.

Now, usually this doesn't matter. When someone looks at MSFT there is a lot of data from a variety of sources and the stuff from BB is basically irrelevant. However, BB has invested a lot of time, money and expertise connecting to niche data sources. R does not have a feed from the Kazakhstani Wheat Exchange but BB does. When R users go to check prices on Kazakhstan wheat futures it shows them information based on what it found from BB.

I think this is a very close analogy to what is happening in the Google/MS case and the wrongdoing is plainly obvious.

Matthew said...

I don't know whether the answer to this question is as clearcut as you seem to think. On the one hand, the Microsoft reply to the Google charges is complete garbage--they blatantly misuse the terms "click fraud" and "honeypot" in order to make Google seem to be doing something nefarious in investigating the problem, where I can't see them doing anything wrong at all.

On the other hand, what does it mean to "copy a search result?" They certainly aren't copying the Google results wholesale. If they were doing that, we would agree that there is a problem, but I don't see how limited inclusions of data from Google searches goes beyond fair use.

Even in your "teacherstream" example, the reason Joe would have a gripe is because substantially all of his story would have been copied. If only a few lines had been included, in my view he wouldn't have much of a case.

SAL-e said...

John, I am a new reader of your blog. I many cases I only understand 20% of your subject matter, but in this case I fully understand the situation. I have been struggling with copyright and paten issues for long time. I am not going to debate Google vs. Bing. It is irrelevant from my point of view.
Your example clearly demonstrates the problem with copyright regime. We have allowed copyright to become huge pile of shortsighted, conflicting and arbitrary rules. At the same time we have allowed the copyright holder to overwrite the meaning of COPY. Copying is not bad act it is one of the best trades of humanity. I thing it is essential tool that made us humans. Without we will be still sitting in tree branches somewhere in Africa. Practically every skill we have we copied from other animal or plant in the nature. Also it is key reason why we survived during the Ice-ages. If humans could not be able to copy from each other tools, hunting methods and food preparation and storage we will not be around today. So my question why we are even discussing the right to copy some one or somebody's work. It is our natural right. Why the heck we are building a system that makes us weaker. Copyright concept is fairly new. And started as censorship. None of us really is going to tolerate government run censorship regime, but we are defending a privately own censorship through government given monopolies. "If you have an apple and I have an apple and we exchange these apples then you and I will still each have one apple. But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas."
—George Bernard Shaw
You see the Ideas are not property. We should stop using the term Intellectual Property and use the right term Intellectual Monopoly.

Anonymous said...

RE: those 3 arguments:

(1) Bing is not "copying" Google. (a) The clickstream harvesting does nothing to specifically address Google (b) it doesn't copy any web-search results or their order, it sends info about a term typed in the search box and the URL finally navigated to, regardless of means (c) The active party in the "copying" were google engineers submitting the linkages in question to Bing. Bing didn't initiate the search, this is a push and not a pull model. If you sit down in a park to write your next blog entry and I sit down behind you and keep whispering "Alastair McLaughlin" and after many days you finally happen use that character name in the blog - were you copying me? This is a bigger deal than it might seem; the Googlers in question were all working in SEO. The major problem that all search engines are facing these days are concerted attacks to modify the ranking and results delivered by the corpus in the engine. This is how you get click farms in China where people keep searching for certain search terms and then clicking on specific results to influence how those will show up in the search engine or generate fake ad revenue. Look for "google bombing" and "click fraud". This is a case of one search engine (the dominant one) using this technique against a competitor, succeeding at a <10% rate and then pointing a finger at the victim.

(2) Individual search results are not copyrighted. Google doesn't own the terms : "John", "Hempton" or their relationship to "". What Google can copyright is the ordering of results on their pages, something which by design cannot be recorded by clickstream investigation. It is also noteworthy in this context that Google doesn't use NOINDEX according with their own guidelines to indicate that they'd like pages not to be indexed for their own search results.

(3) Google didn't "just ask" to have links from Google removed from clickstream harvesting. They made much more far-ranging and inflammatory insinuations and brewed up a press sh*tstorm around them. At the same time, see link above, they are actually wholesale copying Bing by crawling it despite the robots.txt entry telling them not to (note that Google is actively working to exclude these results now, the same way that Bing removed the results google complained about; note also the difference in PR work and the lack of a "Google was copying Bing" release). The assumption that Google themselves exclude Bing in their own searchstream harvesting has yet to be proven; it is doubtful that that would be easy, given that Bing results are served up through various partners (ie outside the domains).

Robert in Chicago said...

I'm not even going to offer an opinion on which side is in the legal right or moral right (i.e. what "should" be allowed; they are often two different things). The answer is not obvious to me. But I can still offer a contribution that throws a bit of wrench in the works:

I used to practice some copyright law as well as antitrust law. Copyright law does not apply _at all_ to this dispute. The raw data of which web pages a Google search spits is not an "original work of authorship" protected by the Copyright Act. The full Google web page listing the search results in its particular manner would be protected, but that's not what is being copied.

Your antitrust law idea probably won't fly either, because there's no chance Microsoft is going to "monopolize" (gain market power) in the search market; it's not enough that they have market power in the browser market.

That still leaves other possible legal avenues, but it makes the case harder. And it definitely blows up your TeacherSoft analogy.

狂猪 said...


Your analogy has a fatal fallacy.

To correct your analogy, you need to consider the scenario where the students are creating important new content during the lecture. TeacherSoft is capturing the content from the students and using it to teach other student. Do either the teachers or Joe have a copy right claim on what the students create against TeacherSoft? Granted both the teachers and Joe played a role in steering the students' study?

You are making an assumption that the google search result is the only source of content. You've missed a key source of information.

Here is a simple test:

How many times have you click on a search result without first reading the result snippet and decide if it is relevant?

Whenever you do read first than click, it is your brain that is creating new information and not google's data center. Otherwise, google's "I'm Feeling Lucky" button would be the only button anyone would uses.

MattJ said...

I'll take shot at disagreeing with you. I thought your first post on this was persuasive enough to make me unsure of my reaction to Google's claim; this one has convinced my I disagree with you.

The problem I see with you analogy is that Microsoft is not copying the story, but the listeners reaction to the story. A better analogy would be if the book that the teacher read was a history book or a non-fiction book about a topic, and if what was recorded was not what the teacher read, but the results of a test that the teacher gave asking the students what was the most important thing they learned from the story.

If a Google user invokes a search, but then does not click on a link in the results, I presume Bing learns nothing from the action. If it did, that would be a clear case of copyright violation. What Bing learns from is the link the user chooses from the search results. Bing is learning from the interpretation of the user, which the user has the right to provide to Bing, and not from the Google results itself.

What strikes me as so dangerous to Google from this is that it interferes with the business model of allowing the page providers to pay for better placement on the return list. To the extent Google is allowing the order of he list to be affected in such a way, Bing will be able to improve the results from the users standpoint.

狂猪 said...

By the way, here is another consideration:

Search engines vs. the search users, who creates higher quality and higher value search information ?

1. Depth

In determining relevancy, the human brain is vastly superior than today's state of the art search engine.

2. Breadth

On the surface, machines seem to have a big advantage. Actually, that may not be true. We need to look at the aggregate total of information from all the internet search users.

No organization, not even information aggregators, can claim copy right on the much higher quality and more valuable search information created by all internet search users.

This is not a fine line.

One more thing, I don't believe google is intentionally being evil. However, the way google is handling this is certainly not good for us and the search engine space.

Anonymous said...

This argument doesn't work at all. What Microsft is copying isn't the contents of the search result page. In your metaphor that is the text of the novel itself. What Microsoft is doing is detecting search terms and subsequent clicks. No text from the Google result page is used. In your metaphor this is more like listening for author names and then when someone shouts out the name of a book by that author, linking that book to the author. There is no copyrighted work by that author being used.

kaisergaetano said...

The Google piece was done by folks who write like engineers. It's straightforward, a recitation of fact. The Bing piece reads like the work of PR flacks. It begins by making fun of the Google piece, and then in classic bait and switch fashion says, 'but let's not talk about THAT.' Then comes the howler about the reason for Bing's existence--to improve search, not to make another stab @ Microsoft's late & inept entry into search and 'The Cloud.' It also throws in a red herring & accuses Google of unethical behavior in ferreting out Bing's questionable @ best behavior.
Looks to this reader as though Google carries the day in this conflict.

Angus said...

This is an interesting analogy. However, the problem with using an analogy to illustrate a point is that the analogy is nearly always a poor fit for the actual situation.

In this case, I think a better (still flawed) analogy would be where "TeacherSoft" records only everything the students say - so if they're having a lesson about "Joe the Novelist", TeacherSoft sees some words and snippets of information from Joe's work, including when the students quote back a sentence of two, but not all of Joe's work.

This is closer, IMHO, to Bing seeing the URLs of Google's search pages, and which links the user chooses to click, but not the search pages themselves.[1] But it's still a poor analogy, IMHO.

[1] If you don't know what precisely Bing gets sent, it seems to be this:

Robert in Chicago said...

My earlier comment gives the reason why Google probably loses in court (unless they can invoke patent law or trade secrets law or some other law I haven't thought of).

I could be persuaded otherwise, but I think MattJ's comment explains why the legal perspective (as I interpret it) conforms with the "moral" perspective (i.e., what _should_ be the rule).

Andrew Johnson said...

The real story here is that Microsoft (and to some extent Google) are the biggest purveyors of cleverly disguised spyware.

The original post's analogy is incomplete and flawed.

A correct analogy would be as follows:

Teachersoft records teacher's voice. Teacher is reading a document produced by Joe. Joe's document is a list of short excerpts from children's books.

Google does not own the content of it's search results. It is a mash up of content created through copyright fair use. However it is possible they may own the order of the listings of their results. It is a legal grey area and certainly open to civil dispute but hardly a criminal one.

News stories in January were reporting that Google was having trouble with spam (thanks to the content farm business model but that is another story) and some news stories were claiming that Bing's search results were more relevant than Google's. Of course Google was offended and either decided to blow a hole in MS's credibility or just release something they knew all along.

Based on my own personal experiences I suspect that Microsoft has been using clickstream data for its search engine for years.

Anonymous said...

Google has no case on copyright IMO. As stated by another comment, there is no original work of authorship being copied. It is more like the directory case in Australia which Telstra recently lost.

The analogy is probably not useful. Joe's novel is an original work of authorship. Better analogy is Joe using a scrapbook of articles and pictures gathered from external sources.

Also, it is vital to remember that copyright does not protect an idea, it only protects the way an idea is being expressed.

Anonymous said...

I have a separate question. If you listen to Macy's past investor presentations they make so e big claims about how Bing search is superior to Google and returns better results. Despite this they have resorted to copying. Set aside your (perfectly reasonable) legal argument, what does it say about their basic competency.?

Anonymous said...

I still think the crucial thing here is that Bing never copied anything from Google, but that Google had to actively submit these terms after agreeing to a data collection policy. This is Google inserting search terms into Bing, not Bing copying Google.

a said...

Google is IMHO full of bs. Google will infringe your copyright (e.g. on a book) unless you opt out. Even if MS had been infringing Google's copyright -which I don't think it has been - when has Google opted out? As near as I can tell, Google has still not opted out in the same way that it expects others to opt out from its copying activities. This serves Google right.

C said...

I offer another analogy.

The teacher who read Joe's novel out loud had presumably obtained Joe's permission to use his property. Joe did not relinquish his rights over said property.

At the same time, the teacher had signed up with TeacherSoft to provide everything he/she obtained for use in the classroom to TeacherSoft.

This could just be like when someone rents an item or property and subsequently sells it. That person should then be prosecuted and the buyer(s) forced to return illegally obtained property, much as pawn shops are forced to.

Using the above analogy, might the law be better served prosecuting people who accept & use software that allows them to contribute to this "clickstream"?

Why not pass a law to explicitly make such software illegal?

Because that would basically undermine the whole premise of the Internet, i.e. universal distribution/copying/piracy. The above is exactly what RIAA had been fighting for.

bxg said...

Your analogy can be changed slightly and become more instructive. Now Joe's book is a book of non-fiction; maybe it's about dinosaurs. But for all that, it's a great work: the facts that Joe has selected to include, his engaging presentation, the order he shows things ... even ignoring the wonderful illustrations, no one has moral or legal doubt that he has and deserves copyright protection.

I doubt this would change your interpretation of the situation in the slightest.

But now we can see more ambiguous possibilities than having Teachersoft substantially copy the entire prose. Many they monitor which facts (presented from the reading of Joe's book!) made the children look especially bored, or engaged, or how well they performed on various related test questions a week later, and so forth. And Teachersoft customizes their own classroom lessons about dinosaurs to some degree by how they see the children react. Now, I think it's easily possible to construct a useful continuum of grey areas.

One really grey area might be this situation: Teachersoft make use of some factual (so-they-think) claims originally from Joe's book, some that they notice really seemed to excite and engage the whole class. Every child is just astounded that a Tyrannosaur is a big as the world's tallest skyscraper - they are talking about this for days. In the children's eyes, that claim was the high point of the whole book ... and when Teachersoft sees how impactful this is they work it into their own course. Is use of this one "fact" case proven for copyright infringement?

Bryan said...

Techdirt's analysis of the overall issue:

I think that the possibility of Google's search results being copyrighted is ridiculous. Google does not post a copyright anywhere on the page and I think that the copyright of automatically generated content is suspect, considering the nature of how it is "published".

Even allowing for this to be considered under copyright law, neither of the examples considered fair use. The guidelines of fair use are:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

In the reading example, the work was non-commercial / educational, only a portion of the completed work (the pictures would have been difficult to see over video), and was unlikely to affect the potential market because parents would find no value in showing their children the book over a recorded video stream.

In the Bing / Google case, the work is commercial, but only copies a small portion of Google's results. It is also unlikely to affect Google's search market because Google's search model is based on quick search and proper ordering of the results, not completeness.

What this did establish was that Google was the source of the copied information which is important for making a legal case but only a small portion of what would be required.

I agree with SAL-e that copyright and IP law is a poor idea in general and should be abolished.

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