[Foundation-l] Info/Law blog: Using Wikisource as an Alternative Open Access Repository for Legal Scholarship

Anthony wikimail at inbox.org
Sun Jun 21 11:17:59 UTC 2009

On Sun, Jun 21, 2009 at 1:51 AM, Ray Saintonge <saintonge at telus.net> wrote:

> Stephen Bain wrote:
> > On Sun, Jun 21, 2009 at 5:27 AM, Parker Higgins<parkerhiggins at gmail.com>
> wrote:
> >
> >> Except google isn't asserting any kind of copyright control over these
> >> books, they're just not making it convenient to download them in your
> >> preferred format.  Maybe not The Right Thing, but not as boneheaded as
> suing
> >> a party who reprints public domain material, as was the case in Feist v.
> >> Rural (the supreme court case you mention.)
> >>
> > They want people to use their service. Fair enough, given that the
> > scanning and OCRing happened on their dime.
> >
> >
> How does that give them any special rights?  There are no database
> protection laws in the US, and sweat-of-the-brow has been rejected as a
> basis for new copyrights.

You're right, it doesn't give them any *special* rights.  They have the same
rights as any other computer owner.  Specifically, they have the right to
choose who uses their computers, and how they use them.  Whether or not a
terms of service is legally binding is really not the issue. (*)  The issue
is whether or not they have a duty to make it *convenient* for you to
download the data.  Of course they don't.  Why should they be required to
help you put them out of business?  That kind of twisted logic might make
sense in the non-profit world (although I still haven't seen the WMF step up
to the plate and make it easy for people to make a full history fork, or
even to download all the images), but Google is not a non-profit
organization.  Google would be Evil if it *didn't* protect itself against
this, as it'd be breaking a promise to its shareholders.

(*) Personally, I'm of the opinion that merely accessing a website is not
sufficient to bind a websurfer to a TOS, and that at most a TOS which you do
not have to even click "agree" to is a unilateral contract which can only
impose promises upon the offeror, though this is not a legal opinion but
merely my opinion of what the law should be.

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