Try as I might, when I wonder where the Google Print case is going, I keep returning to the idea that society ought to start thinking of “copying” in a more purposive sense. This because the digital exploitation of content, which may create infringing copies to facilitate that exploitation, seems often to do so for a non-infringing purpose; the copies being an unavoidable incident to the process. Should this matter? I would hope so.
William Patry makes the point in a recent post that explores the concept in some depth and wonders whether this fixation on fixation isn’t really beside the point:
If defendant’s “fixation” is evanscent, as in buffering or caching why, for infringement purposes, should it be deemed a “copy”? Such copying is not being done for its own value, but rather to facilitate a non-infringing use, such as a licensed public performance. Might not the same be true for intermediate copying and other copying technologically necessary for non-infringing activity (like limited searching of books)?
Prof. Lessig (apparently) comes at it from a similar angle in a recent Wired editorial – copyright exists to protect authors, and nothing about Google Print removes their incentive to author.
