Foxfyre: A few posts back, you suggested: "Okay let's go with Copyright Law as the basis." Why don't we do just that, walk through the statute, and consider how it would properly apply? I am not a lawyer, and I get seriously embarrassed when I read some confident opinions about the law that I wrote just a year ago. There is a good chance that what I am about to write will embarrass me in a year too. But laws are written for the people, not for the lawyers, and nobody can keep us from trying.
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
One reason Google is offering this service is to serve its customers purposes such as research. It's an "I know it when I see it" consideration, and people can come out either way, but when I see Google print
, my best judgment tells me that it fits into the statute here, especially considering the vague "such as" language.
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include
At this point, the statute gets very interesting in the context of Mr. Keene's and your court bashing. Compare this with the case where your constitution talks about "commerce among the several states", and the Supreme Court decides that this phrase covers the individual who grows in the privacy of his own home the marijuana that he smokes. On that topic Joe and me can exchange several threads full of arguments whether this interpretation is truthful or manipulative, responsible or doctrinaire. But this text is entirely different. Even if interpreted strictly
, the statute delegates to the courts the work of "determining whether the use made of a work in any particular case is a fair use." It only gives four fairly general guidelines on how the determining is to be done. Because the statute explicitly leaves the courts so much leeway in deciding cases, the contention that activist courts perverty the authors' fundamental rights reduces to hot air.
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
Google's use is commercial, which is an argument against it being fair use.
(2) the nature of the copyrighted work;
I don't understand the above provision, so will refrain from interpreting it. If a one of the lawyers in this thread knows what this means, I will be grateful for any enlightenment he might offer.
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
Google is going to offer three pages or so from books that are typically hundreds of pages long. In my "know it when I see it" judgment, this is a small enough percentage to be fair use. But it is not a slam dunk.
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The main effect of Google Print will be to increase the visibility of books to customers, which increases the market for and the value of the copyrighted work. Offsetting this, market and value will be decreased to the extent that the customers are buying the book for the specific snippet published by Google. It would be up to the court to decide which of the two effects is larger, but I would be surprised if the value-boosting effect did not dominate.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
This does not apply to this case.
Summing up, I think Google Print is fair use, but as Steppenwolf suggests, this isn't sufficiently clear to bet my life on it. Then again, Mr. Keene's and Foxfyre's claim was not that it's not a slam dunk for Google. Their claim was that it is
a slam dunk against Google
-- indeed, that this is so obvious that only an activist court would decide otherwise. On the face of it, this claim of theirs is not supported by the language of the fair use clause of the Copyright Act.