Monday, February 19, 2007

COPA: book searches and "taken as a whole"

Any business day now (that is not a federal holiday) we could learn of the Eastern District Court's ruling on the COPA trial, probably on a Monday to Thursday, probably before noon. The details of the opinion can be as important as simply the holding itself. Even if upheld, it is not known what the timeframes would be if the injunction were to be lifted, in whole or part, or how it would be interpreted in practice. If this blog has not been yet updated, the visitor can visit the ACLU master page here, or CNN Law or Technology pages immediately for the latest (including links to the opinion text, hopefully).

One issue that came up was what the "whole" is in "taken as a whole." Many legal scholars believe that the "whole" is the individual web page as the viewer sees it. But this can depend on many factors, such as whether the page is static or dynamic, where frames are used, etc. Some book publishers offer copies of pages to browse, as do some book search engines, and these "wholes" may be considerably smaller than a whole work or even a chapter of a whole work. If a publisher offers a page without allowing robots, presumably a minor could not find the page without doing considerable work and maybe learning something of serious scientific, artistic, social or political value (more like what happens when browsing a physical hardcopy in a bricks and mortar bookstore or public library, even in general stacks without any restriction).

As a whole, book vendors and publishers (other than specialties like Wildcat) have not been active as COPA plaintiffs, and I wish that they had been. They may have overlooked this whole concept.

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