Re: Google Book Search and fair use

[Sandy Thatcher <sgt3@psu.edu>]

Alas, this article perpetuates one of the myths about the 
publishers' suit against Google, that somehow it had something to 
do with those "snippets." That was never the issue. The crux of 
the matter was Google's attempt to substitute an "opt out" regime 
for the traditional "opt in" regime of copyright law.

It was also not the Google Book Search program as a whole that 
was in question, but only the Library Project. Many of us 
publishers joined the Google Book Search program soon after it 
was first announced and believe that it is definitely a Good 
Thing, making the functioning of the economic "long tail" 
possible.

The problem with the "opt out" approach, especially for smaller 
presses like ours, was that it imposed an unconscionable burden 
on us to research all of our past titles for digital rights in 
order to tell Google whether it could include those titles or 
not.

Another issue for us was Google's donating a digital copy of each 
book to the participating library, thus displacing a possible 
sale (and thereby violating the fourth factor of fair use).

Whether Google will prevail in court or not depends greatly on 
whether the Second Circuit buys its argument that the use of its 
search mechanism is "transformative" (under the first factor). 
The Ninth Circuit has bought into this new and radical notion of 
a functional type of "transformative use." The Second Circuit so 
far has not, and there is reason to believe, from recent cases, 
that it is continuing its tradition of interpreting what is 
"transformative" in a non-functional way. (This all goes back to 
a theory of fair use, now a classic in the field, that Judge 
Pierre Leval, who now serves on the Second Circuit Court of 
Appeals, published in the Harvard Law Review in 1990.)

I'm betting Google will not prevail in the Second Circuit and 
would have to go all the way to the Supreme Court to stand a 
chance.

For anyone interested in a more detailed argument along these 
lines, see my article "What Is Educational Fair Use?" in the 
April issue of Against the Grain, which I wrote as a reply to an 
ARL white paper by Jonathan Band on this subject.

Sandy Thatcher
Penn State University Press


> An interesting piece on Google Book Search and fair use, by
> Wallace Koehler:
>
> http://www.redorbit.com/news/technology/1462875/good_and_evil_in_the_garden_of_digitization/
>
> Bernie Sloan
> Sora Associates