One of our favorite topics in this Intellectual Property Issues series – perhaps the favorite – is Google Books, the massive project through which Google hopes to bring its search capability to the text of all books in the English language. To make a book’s text searchable, however, Google must scan the book. And scanning is copying. And copying usually means copyright infringement. Certainly the many authors and publishers who have sued Google take this view.
There are two ways to avoid infringement when copying a copyrighted book: get a license or prove that the copying constitutes fair use. Many publishers have in fact granted Google Books the necessary licenses, and for many others the licensing option was in play in a proposed settlement of the Google Books lawsuits. But objections to the far-reaching terms of that settlement (including, as noted by Randy Picker, objections based on antitrust and class action law) led the judge to scuttle the deal. Peter Menell proposed that the controversy might be best resolved legislatively by Congress or a public commission (and he has more recently called for a fee shifting approach to fair use claims), but so far his calls have not been heeded – and in any event Randy Picker cast doubt on the direction that some of the contemplated legislation was headed. [...]
James Gibson, Google Books: Finally, an Actual Fair Use Ruling!, The Media Institute (Oct. 22, 2012), available at http://www.mediainstitute.org/IPI/2012/102212.php.