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?
Sure. I would like to contribute these guidelines on copyright law interpretation for libraries and educators by the copyright office:
One reason Google is offering this service is to serve its customers purposes such as research.
Not all "research" is covered under fair use. Google has stated plans to sell content and they aren't scanning the books for their own research purposes. They are scanning the books for profit.
Whether the books can be used by others for research purposes has no bearing on whether Google's profiting from providing them is legal.
Similarly, if I photocopy and sell textbooks it is illegal whether or not the end users intend to use the material for "research".
Here's a marginally related prediction: Google is currently working on revolutionizing online content through "micropayments". They will release a payment system and they plan to realize "micropayments".
(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.
A very strong one. Commercial impact is a strong consideration in the fair use cases I have been reading.
(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.
I am no lawyer, but some of what they are talking about here is things like whether a work is "consumable". A book is very much consumable.
(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.
Google is displaying several pages at a time. Google is duplicating the whole. It is child's play to circumvent Google's safeguards against viewing more than fair use would allow.
But I think that the issue here can't be restricted to what Google divulges to the web user because what Google duplicates is also regulated by law.
(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 alternate side of the coin is that Google is providing content for free. Meaning that some readers may sate their informational needs through Google and neglect to buy the book entirely.
I think the former will be the case in most cases, but only one of the latter is needed to establish illegitimacy in their actions.
I have, in the past, created proof of concept that Amazon's own booksearch can be used to read entire copyrighted works free of charge. Thing is, Amazon has permission to open up this exploit and Google does not.
Amazon invites publishers
to leverage their point of sale and publishers agree to the duplication of their works and the rules under which they are viewed.
Google simply goes to libraries and scans their books.
For those following similar cases note that Yahoo formed the Open Content Alliance
that plans to do something similar to Google, only with the permission of the copyright holders.
Summing up, I think Google Print is fair use.
I think it's nowhere close to fair use, but I think that the web will continue to redefine fair use through "facts on the ground".
Search engines already index billions of copyrighted texts and through their caching they duplicate and disseminate copies and the nature of the work is important in that in these cases the pages are not "consumable" like with books and music.
The law is not well suited for this digital age. Even laws meant to address the digital age make this an odd case.
For example, if I were to sue Google for this. I would do so under the DMCA law (a bad one that I disagree with), which forbids (vaguely) websites from helping others to circumvent copyright.
It's vague and the precedents so far are pretty heavy handed (for example, Google has removed many simple links to other sites that are violating copyright because of this law).
Here is one example
Search Google for "kazaa lite" and scroll to the bottom of the page to see the results of that DMCA complaint.