Rethinking Google Library
I have increasingly come to find the traditional four factor fair use analysis not only unhelpful, but harmful to looking at uses that may promote the progress of science and not injure copyright owners' interests. We would have been much better off had the 1976 Act simply said in Section 107 "Notwithstanding the provisions of Section 106, the fair use of a copyrighted work is not an infringement." Putting four factors in the statute has made courts and the rest of us think that Section 107 either "codifies" fair use (it doesn't), define fair use (no again), or somehow provide a way in a real case to assist in determining the outcome, and here I would say the statute does the most harm: the temptation is almost overwhelming to run through the factors, cite previous decisions about how and what the factor entails, is to be weighed etc. and then to tally up who was naughty and who was nice and to what degree. That's an artificial approach and maybe intellectually dishonest in some cases if we reach a conclusion first and then fill in the "reasoning" afterwards. That's what I did in my Thursday posting.So in the Google project, why should we care if there are server copies? The purposes for the copies in connection with the Print Library project is to give people access to knowledge about the existence of the book as well as a tiny amount of text. That is of great help to researchers and hopefully to authors and publishers of the books too. It in no way harms copyright owners unless the project becomes something else, namely a full-text service which then is a market substitute.
I remain unconvinced that the fair use argument is strong enough to topple the politics of this case. Courts don't care about real harm, just potential harm. Big projects scare courts. The Internet scares courts.
Look, one of the reasons that I am hanging out there against so many smart lawyers on this is that I am reading the politics of the case as well as the statute and case law. The project is big and scary. Courts will side with authors when things get too confusing and potentially revolutionary.
This is a case of Web norms clashing with book norms, digital vs. analog, and new vs. old. You can cheer for the Web, for the digital, and for the new. But you can't change how courts think about them quite so quickly and easily.
I was at a great conference at the University of Michigan last week where I had good discussions about the Google library project with several Michigan officials, Larry Lessig, and Jessica Litman, one of the most brilliant copyright scholars around. They all disagree with me on this.
Here is what the Michigan people say: It had to be Google. It could not be universities. Now is better than later.
All of those claims are compelling but ultimately unconvincing. There is nothing wrong with opting for deliberate speed over hyperspeed.