Monkey-typingA Shakespearean-quality work will result if enough monkeys or similar creatures—humans included?—peck away randomly on typewriters. That’s more or less the infinite monkey theorem.

Now some reality. Under a recent court ruling, it would appear that the monkeys, at least, might not be able copyright their masterpiece. We need to do something (even if the copyright system might be kinder to the humans mentioned above). Fodder for the Author’s Guild? Here’s the reason for my concern.

Monkeys cannot copyright selfie photos, according to a provisional option from U.S. District Court Judge William Orrick, as reported on CNN and elsewhere.

“While Congress and the President can extend the protection of law to animals as well as humans, there is no indication that they did so in the Copyright Act,” Orrick wrote.

The U.S. Copyright Office likewise isn’t into granting copyrights to animals.

The whole sorry episode happened after a monkey in Indonesia fiddled around with a photographer’s camera and took a picture of himself, and then PETA jumped in with a stupid lawsuit, saying the money from the suit would go toward monkey protection. I love animals. But long term, such idiocy is bad for  the group’s credibility.

Humor alert: Yes, I’m joking about the Author’s Guild above. The ill-fated suit against Google for unauthorized indexing of contemporary books, however, barely missed being in the same category as PETA’s if you consider the basics of fair use and the protections Google had in place.


  1. Google’s “protections for fair use” were one of many illustrations that the company doesn’t understand books much less research. It’s “snippets” violate one of the most basic principles of good scholarship, that quotes should always be in context.

    That snippet could quite likely come in a portion of a book where the author was describing a point of view not his own. It could might end just before a remark like, “However, there is absolutely no evidence for those claims….” That’s why I say Google doesn’t know what it is doing. The entire scheme was like that. Sloppy, sloppy, sloppy…

    Besides, online and searchable, whole-text versions of books ought to be off limits to all but the copyright holder. The reason for that is obvious. Even people who own a printed version often feel a need to buy an electronic version to search. That puts a searchable digital version in the same category as movie and stage version of a book, both of which are protected by copyright. And that makes it similar to abridged and expanded versions, which are also copyright protected.

    And if you use all of a book, even if only parts are copied, you need to copyright holder’s permission. That true even of books that radically alter a book’s plot, as many movies do.

    Finally and most important. Google wasn’t trying to follow the law. It was trying to create a profit-center from content created by others. Google did not even come close to fulfilling the core principle of fair use, that the user was using his or her own mind to repurpose that content not merely mechanically repackage it. The legal term for that is “transformative.” If no thought is involved, then the use cannot be transformative and hence not fair use.

    Writing a review of a play is fair use. The reviewer has to think. Writing a literary commentary to a book is fair use, because the commenter has to think. Mechanically scanning and OCRing a book isn’t fair use because its not use for a legally permissible purposes at at all. Copyright law specifically states those purposes. You cannot invent other purposes. You certain can’t add machines mindlessly copying it.

    I know. My Untangling Tolkien probably pushes fair use to its ultimate limit. Every event in The Lord of the Rings is there, even minor ones when a particular day is dull. But it is fair use became it is scholarship. I spent months pealing away the actually chronology of events in a text that goes hundreds of pages without a single clue as to the current date. That took an enormous amount of “transformative” work on my part and it answered important questions about how reliable Tolkien’s narrative. Were ten days for one pair of characters eleven days for another? Now we know.

    That’s not what you find with Google’s scanning. No one doing the scanning needs to read a word. No one involved even needed to know the language the book was written in. That’s not remotely close to fair use. It’s theft pure and simple.

    All this is unfortunate. When Google began this madness, I tried to get their head lawyer to create something that’d actually be useful. It would not just be a giant, mindless text grab. It’d find the best books on an array of topics, get permission to use them, and then present them in a useful form for students and researchers. It’d be legal and curated. It’s even be carefully checked for errors, something that Google didn’t bother with.

    I won’t go into a host of other reasons why Google scheme is a disaster. It not only abused copyright, it grossly abused class action law. It only informed authors Japanese authors of their right to opt out two ads in two magazines. It was also severely limited by the nature of its legal action in what it did. All illustrations had to be blacked out because illustrators were in the class action. All quotes long enough to require permission had to be blacked out.

    It is my conviction, based on every article I’ve read on the topic, that there’s not a single journalist in the U.S., tech or otherwise, who actually read the original Google book settlement. Not one.

    Every single one of them seems to have gone to Google’s FAQ and naively echoed what it said, unaware of just how deceptive and misleading it is. Then they merely echoed one another. None gives any evidence of actually reading the settlement, probably because that’d be hard work. It opens with over 170 definitions of terms. Understanding it requires a great deal of understanding of copyright and class action law, etc. That they don’t have.

    Better, they thought, to simply echo what Google lawyers were saying and assume that, since all reporters were saying the same thing, it must be right. It wasn’t and it still isn’t.

    –Mike Perry

  2. @Michael: Yes, I’ll agree that Google isn’t perfect. Researching articles, however, I myself find the snippets very useful both at the personal level and in terms of the public interest. I take care to guard against confusing an interviewee’s opinion with that of the writer who quoted or paraphrased him or her.

    Most of the time I wouldn’t be buying the books anyway. How could I if I didn’t know they existed? That’s where Google helps out.

    If the snippets aren’t enough, yes, I’ll buy the books. All in all, a pretty good deal for writers and publishers. Beyond that, Fair Use is a reporter’s friend in terms of quoting documents people might not want you to, and I hate it when efforts are made to weaken the doctrine, even if the contexts can be different from the Google situation.

    I doubt this will change your mind, of course. You’re entitled. Meanwhile thanks for weighing in with you own perspective.


  3. @Michael: unless the Supreme Court chooses to overrule the appellate court decision, Google’s Library project is fair use no matter how many times you claim that it is not. Also, the snippet view is analogous to their web search, it’s only supposed to give you enough for you to see whether you want to go to the book (or website) and not to use the snippet as authoritative research. If people are using it incorrectly, that is not google

  4. Sorry, phone accidentally finished last message for me. If people are using snippet view incorrectly, that’s not Google’s fault. Finally, Google abandoned their plan to make full scans of orphaned works available as part of their Google Library project years ago, and you are improperly conflating this with the existing Google Library which was judged to be fair use.

  5. A more interesting variation on the infinite monkey theorem involves the ideas behind evolution and string theory. Things may happen randomly but there is a selection process at work that makes each iteration of the process select from a different universe of possibilities. The direction of that process is difficult to discern but is generally hoped to be toward “improvement” – whatever that is.
    Writers are influenced by those who came before and, so, act on a different set of possibilities depending upon when they write and what they know about what has passed. How many serious future novels will start with, “It was a dark and stormy night …” ?
    Thus, it may be more useful to think of an infinite number of intelligent, sentient beings having access to all that has been written before (including critical analyses) who are committed to building on that base and having a really long time (approaching infinity) and excellent tools to do so. Google’s scanning and presentation of extant literature is a solid contribution to this positive growth scenario. Shakespeare might eventually have some real competition.

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