*** SENT, Wed 31 Jan 2007 ***
   *** Note typo in sig: "Author's Guild", should have been "Authors ..." ***

From: Karl Fogel <kfogel@questioncopyright.org>
To: themail@newyorker.com
Subject: Re: Google's Moon Shot
FCC: ~/mail/outwent
Reply-to: kfogel@questioncopyright.org
--text follows this line--
                                        Karl Fogel
                                        832 Dolores Street, #4
                                        San Francisco, CA  94110
                                        USA

                                        Phone: (773) 351-1729
                                        Email: kfogel@questioncopyright.org
To the Editor,

Jeffrey Toobin's article on Google Book Search ("Google's Moon Shot",
5 Feb 2007) was enjoyable and informative, but it repeats a pat and
incomplete version of the origins of copyright.

Copyright law did not start at "the birth of the Republic" with a
constitutional clause.  It started as a means of regulating the
behavior of printers in early eighteenth-century England (and has
origins in an even older censorship law).  The English Parliament and
the booksellers together designed copyright around the economics of
the printing press, including the physical monopoly inherent in the
master plates needed to print reliable, authentic copies of a work.
The new law was a legal monopoly to reflect the physical one, and
helped prevent a printing free-for-all in which different, mutually
incompatible versions of a work would compete in the market, confusing
readers and authors alike.  (There are many scholarly works covering
this history; one of the best is Adrian Johns' "The Nature of the
Book", University of Chicago Press, 1998.)

Copyright was thus meant to encourage the reliable manufacture and
distribution of replicable works, in an age when perfect copying was
usually an unattainable ideal.  The notion of an author's right of
"ownership" was introduced rather late in the game, partly as a tactic
to reassure Parliament that the printers were not attempting a
large-scale property grab for themselves.

All this was more familiar to the framers of the U.S. Constitution
than it is to us -- they were closer to it in both time and
technology, and Article I should be read in that light.  The situation
today is, of course, very different: perfect copies are what the
Internet makes by default, and services like Google's book
digitization are the best protection an author could ask for against
obscurity, imperfect copying, and plagiarism.  The world is not the
same as it was in the eighteenth century, and we shouldn't interpret
copyright law as though nothing has changed.  The very concept of an
"out of print" book is slowly becoming obsolete; it's disappointing to
see the Authors Guild suing those who are working to make this happen.
(Disclaimer: I worked briefly for Google in 2006, but resigned in
October of that year and have no financial interest in the company.)

-Karl Fogel
 Member, Author's Guild
 Editor, QuestionCopyright.org