SIVACRACY.NET

Yesterday some members of the Author's Guild filed suit against Google over its library project.

Here is EFF lawyer Fred von Lohman's fair use analysis of how these cases might go:

Nature of the Use: Favors Google. Although Google's use is commercial, it is highly transformative. Google is effectively scanning the books and turning them into the world's most advanced card catalog. That makes Google a whole lot more like Arriba Soft than MP3.com.

Nature of the Works: Favors Neither Side. The books will be a mix of creative and factual, comprised of published works. The works cited in the complaint include "The Fiery Trial: A Life of Lincoln" (largely factual history) and "Just Think" (described elsewhere as: "pictures, poems, words, and sayings for the reader to ponder").

Amount and Substantiality of the Portion Used: Favors Google. Google appears to be copying only as much as necessary (if you are enabling full-text searching, you need the full text), and only tiny snippets are made publicly accessible. Once again, Google looks a lot more like Arriba Soft than MP3.com.

Effect of the Use on the Market: Favors Google. It is easy to see how Google Print can stimulate demand for books that otherwise would lay undiscovered in library stacks. On the other hand, it is hard to imagine how it could hurt the market for the books -- getting a couple sentences surrounding a search term is unlikely to serve as a replacement for the book. Copyright owners may argue that they would prefer Google and other search engines pay them for the privilege of creating a search mechanism for their books. In other words, you've hurt my "licensing market" because I could have charged you. Let's hope the court recognizes that for the circular reasoning it is.

Fred has oversimplified this terribly.

He does not consider the fact that the copying in question is complete and total -- 100 percent of the work. The authors care about the first complete copy, not how it is later presented in commercial form.

He does not consider that the "nature of the work" is set by the most protected works, not the least. For each suit, there is a particular nature of the work. Novelists and poets are among those suing. That's where the test will be.

Lastly, he mistakenly forgets the most powerful and troublesome word in the fourth factor: "potential." The issue is the effect on the "potential" markets, not the established markets. Because a market exists (and a greater potential market lurks) for licensed digital images of published books, the library project is about that market (see Amazon and Google Print) rather than the market for the physical book.

This is a quick take. I am still working up my real argument and article. I hate that I keep getting drawn into the blog courtroom on this.

Again, please don't misunderstand me. I am not cheering for the authors here. I am just worried that admiration for Google is clouding judgements.

Fred is one of the best copyright lawyers in America and I would much rather have him on my side of an argument than the other (fortunately, it works out that way most of the time). But I am afraid he is on weak ground here.

The copyright issue at hand here is not really fair use. That's just trivia.

It is this: Will copyright remain a copy right or will it become a distribution right? Which is better? Which should it become? What are the gains and losses if we were to see such a shift? Would Time-Warner and Disney (both major book publishers) let that happen?