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“Google asserts that its use of the copyrighted books is “transformative,” that its database turns a book into essentially a new product. “A key part of the line between what’s fair use and what’s not is transformation,” Drummond said. “Yes, we’re making a copy when we digitize. But surely the ability to find something because a term appears in a book is not the same thing as reading the book. That’s why Google Books is a different product from the book itself.” In other words, Google says that being able to search books on its site—which it describes as the equivalent of a giant library card catalogue—is not the same as making the books themselves available. But the publishers cite another factor in fair-use analysis: the amount of the copyrighted work that is used in the creation of the new one. Google is copying entire books, which doesn’t sound “fair” to the plaintiff publishers and authors. “Traditional copyright analysis says that a transformation leads to the creation of a new and independent work, like a parody or a work of criticism,” Jane Ginsburg, a professor at Columbia Law School, said. “Copying the entire work, which is what Google is doing, does not preclude a finding of fair use, but it does fall outside the traditional paradigm.”
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By this analogy for use (key-word reference searching of books rather than reading the entire contents) access to this digital storehouse of books is much like access to articles in full-text databases. The difference is that licensing contracts govern usage of copyrighted articles in databases, and the lawsuits of publishers against Google books show that there is no equivalent system for copyrighted books scanned by Google. Another example of the use of books in the way we use journals is a quote elsewhere in the New Yorker article. Google scans the entire book, but makes the text available to the reader only a section at a time.
Point - Counterpoint
“The suits that have been filed are a business negotiation that happens to be going on in the courts. We think of it as a business negotiation that has a large legal-system component to it” — Marissa Mayer, Google
“This is basically a business deal. Let’s find a way to work this out. It can be done. Google can license these rights, go to the rights holder of these books, and make a deal” — Pat Schroeder, president of the Association of American Publishers.
Licensing as a Barrier
“If Google says to the publishers, ‘We’ll pay,’ that means that everyone else who wants to get into this business will have to say, ‘We’ll pay,’ The publishers will get more than the law entitles them to, because Google needs to get this case behind it. And the settlement will create a huge barrier for any new entrants in this field.” — Lawrence Lessig
“Google didn’t get video search right—YouTube did, Google didn’t get blog search right—technorati.com did. So maybe Google won’t get book search right. But if they settle the case with the publishers and create huge barriers to newcomers in the market there won’t be any competition. That’s the greatest danger here.” — Tim Wu