I've made my thoughts on what Google is doing very clear in other threads. But I think if you do a fair use analysis, comparing the factors in the copyright law to other cases that have come before it, Google makes a very good case for fair use. To the poster that says fair use is "irrelevant": it's not. It's defined in the law as a use of a copyright work that the author/owner
cannot prevent or charge for. So if what Google is doing is fair use, the publishers lose. Period.
First off, the fair use exception as stated in the law:
In reply to:
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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
In a previous thread, one poster made a factor-by-factor analysis of fair use to come to the conclusion that Google's use is not fair use. That's fine to do that, but the poster only resolved these issues using sort of a "gut instinct" method, and didn't look at case law at all. Case law is what a court goes by to figure out how to judge whether something is fair. You want to be consistent with cases that have gone before it, including the US Supreme Court (which has made several landmark copyright decisions in the past decade or two).
So, let's go, factor by factor:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
One might think, oh, it's commercial, so it's unfair, right? In the words of Lee Corso... "Not so fast, my friend." First off, the statute doesn't say either way. But the Supreme Court in Campbell v. Acuff-Rose said that just because a use is commercial doesn't mean it's unfair.
In fact, even though 2 Live Crew's use of Roy Orbison's "Pretty Woman" in this case was in a parody put out on a commercial album that sold well, it was still considered fair use. Other uses that, even though they were commercial, were considered "fair use" by US Courts include Kelly v. Arriba Soft, where a web search company much like Google thumbnailed photographer Kelly's images; Sandoval vs. New Line Cinema, where the use of copyrighted photographs in a scene from the commercially successful movie 'Seven' was fair use; and Sony v. Connectix, where Connectix's use of Sony's BIOS in their Virtual Game Station (before the company was bought out) was fair use.
In Campbell, the key factor in determining whether the purpose and character of the use weighed for or against fair use was not its commercial purpose, but rather, whether its use was "transformative":
In reply to:
The central purpose of this investigation is to see, in Justice Story's words, whether the new work merely "supersede[s] the objects" of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is "transformative." Although such transformative use is not absolutely necessary for a finding of fair use,the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.
Courts have found the following uses, among others, transformative: the parodying of a song (Campbell); the thumbnailing and indexing of photographs in a search engine, in order to access them easier on the internet (Kelly); the photographic representation of copyrighted Barbie dolls to satire the values she is supposed to represent (Mattel v. Walking Mountain Productions); most recently, copying of copyrighted test protocols with students' answers (Newport-Mesa School District v. California Dept. of Education).
What Google is doing with literary works is at least as transformative, if not more so, than what Kelly did with photographs. When accessing copyrighted text through Google Print, one does not see the text as one does in a book. Instead, one is directed towards a snippet of the book, containing that text. Instead of reading a book to gain in depth information about a particular topic, one looks for the information to find in which books such topics are discussed.
(2) the nature of the copyrighted work;
In Stewart v. Abend, the Supreme Court held that factual works are more likely to be taken for fair use purposes than fictional works. This is because while expression is protected by copyright, facts are not. The books which Google is scanning tend to be of both types; but the proposition is that Google is not using the creative elements of the fictional works, but only the fact that certain words or phrases exist in a given part of a work.
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
Again, don't jump to the conclusion that "it's not fair use in any circumstance to copy a whole work." That's not what courts have said. In Sony v. Universal, the Supreme Court said that videotaping entire TV shows for "time-shifting" purposes is a fair use, even though the whole show is being taped. In Kelly the entire photograph is being copied. In Connectix, the Playstation BIOS was being copied several times in an attempt to reverse engineer it. Yet all these are fair uses. Why? Because, in the words of the Kelly court, "the extent of permissible copying varies with the purpose and character of the use. If the secondary user only copies as much as is necessary for his or her intended use, then this factor will not weigh against him or her." Also, in Connectix, it was held that copying of the entire BIOS was "intermediate infringement" because the final product was noninfringing.
Google's use of entire works is very much like Kelly, in that to make a viable search engine, you have to scan entire texts of things. It is like Connectix, in that its copy of entire texts is intermediate, as a precursor to displaying only parts of the texts that are searched for on the internet.
(4) the effect of the use upon the potential market for or value of the copyrighted work.
This is a problematic area for any fair use analysis. Of course, any owner say they "would have" had a market for any particular use. The TV show producers in Sony v. Universal could have said, "hey, we could have given people licenses to copy for money, now we can't do it because fair use makes it legal to do for free!" Same with Campbell ("hey, we could have charged money for a license to parody our stuff!"); Kelly; and all of the situations so far discussed. In Campbell, the court distinguishes between uses that "suppress" demand, and infringement that "usurps" demand for a product. In Connectix, the court realized that Sony would suffer a loss of sales of Playstation units if Virtual Game Station was not found to infringe the copyright, but nevertheless considered it a "legitimate competitor" to Sony.
Google is not competing with authors and publishers. The way Google Print is used, in fact, makes it more likely that one will go out and buy the book, not less. While there are some people that would just get the bare information they need from the pages they can see, the fact that a few pages will not sufficiently detail the author's views of a particular topic makes it unlikely that this kind of "information sniping" will be widespread.
Finally, the Supreme Court has said that in determining whether a partciular use is fair, courts must "weigh the four factors together, in light of the purposes of copyright." The purpose of copyright law is not to reward authors for their "sweat of the brow." (Yes, the Supreme Court said that too in Feist v. Rural.) The US is unique in that our purpose in copyright law is clearly stated in the Constitution--"to promote the Progress of Science and the Useful Arts." Now, this generally means that copyright law should grant exclusivity to provide economic incentives for authors to write, and the greater number (and perhaps quality) of creative works will in itself promote the progress of science and the useful arts. But where exclusivity would inhibit the progress of science and the useful arts, we shouldn't grant it to authors.
So, ask yourself: will Google Print provide disincentive for authors to write? (I doubt it, and I don't think anyone who says authors will be dissuaded from writing because of it actually believe themselves.) Will Google Print "promote the progress of science and the useful arts?" I believe that it has the capacity to promote progress in these areas faster and farther than the world has ever seen to this point. So, for a court to hold that Google's use is not "fair use" under the law would, in my opinion, contravene and undermine the Constitutional reason why we have copyright in the first place.
This is why I think Google's use will be ruled "fair." Now, reasonable minds can differ. But my point is, I don't think it's so cut and dry as people think. Instead of just going with gut instincts about what is "fair" and what is not, analysis of the copyright law as it's written and as how courts have interpreted it, and analysis of the purpose of copyright, will yield a far healthier discussion.
pdrayton 
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