Photo by Harrisr
I assume it’s well understood by now that the biggest, corporate antagonist to intellectual property rights is Google. The company has backed an impressive array of academia, press, lobbying, and activism, all generally evangelizing the message worldwide that IP is fundamentally anachronistic in the digital age. In response to this juggernaut, many a pro-IP advocate likes to underscore the hypocrisy that, despite all their PR on this issue, Google is no less a vigilant steward of its own intellectual property. A favorite refrain, for instance, is the observation that the company isn’t about to “share” its proprietary, patented search algorithm even while its spokespeople continue to promote “openness” and other crunchy values.
I don’t personally begrudge Google protecting its intellectual property; I think they should. But it’s hard not to get a bit heated when the assorted pundits, who either directly or indirectly help promote Google’s interests, take so much pleasure in displaying anecdotal evidence of alleged copyright abuse and overreach as though this problem is so rampant that we’re all just one litigation away from losing our right to use the internet. But what if Google itself is making some dubious claims of copyright in some of its most widely-used works?
Maps & Charts
Maps and charts were two of three types of works (books being the other) protected by the first copyright act of 1790. Near as I can tell, this is indicative of two things: 1) that American copyright doctrine had yet to evolve; and 2) that maps and charts were badly needed and very hard to make in the 18th century. This utilitarian/incentive predicate to get cartographers and surveyors out into the water-moccasin-and-mosquito-filled wilderness does, with the hindsight of history, create a bit of a dichotomy with respect to the way copyright doctrine evolved by the end of America’s first century. In other words, until technology really began to shape the contours of the law.
For roughly the first half of the 19th century, it took a few cases for the courts to begin to draw lines separating copyright from its twin, patent law; and over time, jurisprudence on copyright increasingly coalesced around the principle of “originality of expression” rather than “sweat of the brow” to qualify for protection. Put simply, a work may take substantial labor and/or capital investment, but if it lacks at least some measure of human, creative expression, then it doesn’t generally qualify for copyright. This principle was most recently solidified in the 1991 case Feist Publications v. Rural Telephone, which held that the compilation of a phone book, though laborious, did not meet the minimum standard of “originality” to be eligible for a copyright.
The question of how much creativity is required met its first major challenge when copyright confronted photography in the case of Sarony v. Burrow-Giles (1884) involving a portrait of Oscar Wilde taken by New York photographer Napoleon Sarony in 1882. In a time when the prevailing sentiment considered photos to be merely a mechanical means to record facts, the Supreme Court ultimately had to consider what made Sarony’s image the expressive work of its author.
In that case, the Court held that Sarony’s choices of background, arrangement, pose, etc. to achieve a look that was purposely designed (i.e. not capturing a fleeting moment of independent reality) was sufficiently “creative” to sustain copyright in at least some photographs. The issue of copyright in photographs that do capture fleeting moments of reality (e.g. street photography or photojournalism) recognizes choices like position, focal length, timing, and framing as representing the minimum amount of human creativity required.
Fast-forward to the present, and cameras are everywhere, from satellites miles above the Earth to cellphones in the hands billions of people on the Earth, to specially-designed Google cars roaming the streets and taking 360˚ views of nearly every traversable corner of every town, city, and hamlet. The app is impressive and extremely useful. I’m sure many of us have planned trips to places we’ve never been by using Street View. But are the images copyrightable? Probably not. At least not in the United States or any country where copyright doctrine evolved on the principle of “originality” to make a work eligible.
Loyola Law School Professor Justin Hughes, whose paper The Photographer’s Copyright I’ve cited before, discusses the legal distinctions that many of us intuitively assume—namely that functional imagery like surveillance and security photos, police crime-scene pictures, and satellite imaging are inherently different from the kind of works captured by photojournalists, art photographers, and even many amateur photographers with an eye for distinctive compositions. Hughes opines, for instance, that most of the photographs museums take of their public-domain paintings to sell as postcards and posters are not legitimately protected by copyright because they are precise representations (copies) of the original that do not contain—indeed are not meant to contain—any original expression of the photographer. Hughes writes …
“With all these photographs — photographs of museum paintings, images captured at ATMs and by immigration officials stamping your passport, Google Maps Street View, aerial reconnaissance photographs—there is no originality to give rise to copyright. These images may have copyright in the few countries that still base copyright protection on ‘sweat of the brow,’ but not in the United States or most countries in the European Union.”
With regard to Google Maps, Hughes suggests that when we use the tool in map view, Google at least has some statutory/historical claim to protection of maps, and there is precedent for human choices—colors, line thickness, shading, etc.—in the rendering of maps to qualify for copyright. But when we use the application in Satellite view with all the markings turned off, Hughes is somewhat doubtful about the claim of copyright made by Google and partner TerraMetrics.
In his analysis, he describes the amount of human and computational labor required to composite various photo assets and data in order to present the satellite images we see in the app, but the question of copyrightability would turn on the extent to which any of that labor constitutes original, human expression rather than “garden-variety choices” made for the purpose of rendering the best possible representation of a factual image. Or as Hughes puts it, “what a perfect satellite would see on a perfect day with absolute fidelity.”
At the same time, Arizona State University Professor Dennis S. Karjala, in his 1995 paper Copyright in Electronic Maps suggests that the rejection of the “sweat of the brow” theory after Feist could, as he puts it, “deny copyright protection to a variety of works whose optimal production, as a matter of social policy, may require some form of intellectual property right as an incentive.” In other words, perhaps Google’s claim of copyright in some, or all, of these apps rests on the more utilitarian rationale we can assume was present in 1790 when maps and charts were first given protection.
Of course, the chance that anyone will challenge Google on any of these copyright claims seems about as as likely as a camel passing through the eye of a needle, but that’s about corporate power, not tested theory of copyright law. Suffice to say, that considering what a daunting adversary to the copyright interests of millions of creators Google remains, it’s at least interesting to consider that its own copyright claims in this case might prove very weak if they were in a legal dispute with an entity that treated their IP exactly as they have treated the IP of others.