Having written a few editorials, I know that it is a difficult art. The best editorials have a strong point of view — a way of gracefully cutting to the point of an issue — but enough nuance to make it clear the writer knows what he or she is talking about. The worst are all bombast, displaying an ignorance of the facts that undercuts the editorial’s argument. Unfortunately, it seems as though a recent editorial about Google in the Wall Street Journal fell towards the latter end of the spectrum.
The point of the editorial (which is behind a pay wall) is stated up high:
The firm’s practice of downloading and reproducing books, articles, photographs and other creative materials without approval of the copyright owners is legally ambiguous… Google pits the rights of intellectual property owners against the Web’s ability to “democratize” information for everyone.
There’s nothing wrong with that point — what Google is doing is legally ambiguous, and there is an inherent tension there between Google wanting to index information and content owners wanting it not to.
So far, so good. But then a little further on, things get confused, as Tim Lee at the Technology Liberation Front describes it. The WSJ editorial writer cites a paper that Tim wrote for the free-enterprise Cato Institute, but mostly gets it wrong. It says his paper argues that “transformative” technologies like search engines should be exempt from many copyright lawsuits — but as Tim points out, all he was doing in his paper was summarizing what the U.S. courts have said.
He also notes that the editorial says Google “claims “a legal safe harbor” from copyright infringement under the 1998 Digital Millennium Copyright Act, which allows Internet firms to provide a thumbnail of copyrighted material.” But while there is a “safe harbor” clause in the DMCA (which leads to the so-called “notice and takedown” rule), it has nothing to do with thumbnails.
Then the WSJ talks about how Google is claiming
A right to reproduce and distribute intellectual property without permission as long as it promptly stops the trespass if the copyright owner objects. That’s like saying you have a legal right to hop over your neighbor’s fence and swim in their pool — unless they complain.
The first problem is that Google isn’t asserting any such thing; the DMCA explicitly confers that right. It also isn’t anything like climbing over a neighbour’s fence, since that has to do with property rights and not copyright, and they are very different (for what should be obvious reasons).
So an editorial that has a good point gets all confused in the middle, loses track of the facts, and then employs a dubious metaphor. I would give it a B minus, or possibly even a C, given how important the topic is. Mike Masnick over at Techdirt is similarly unimpressed.