An interesting argument is occurring in the copyfight world, notably over Google Print. Copyfight has decent coverage. Siva Vaidhyanathan has a different take, apparently, then most of the posters on Copyfight. The different viewpoints are pretty interesting. Recently, there’s been some talk about treating Google Print like a library. I don’t think that will work. I commented on Copyfight:
I honestly think the discussion of Google-as-library is more of a distraction from a real fair use argument. Copyright law does not have a definition of a library (or archive) per se, but does have qualifications that a library or archive must fulfill to take advantage of library or archive exemptions. Section 108, a 1 and 2, notably:
(1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;
(2) the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field;
Under the current contract (which you can find a discussion of on the Library Law blog, when the FOIA’d it), I don’t think Google can meet those requirements (particularly the first). That’s why Google is not a library. If they changed the contract, maybe… but more importantly, I don’t know if Google would want to be treated as a library.
The restrictions for digital reproduction are pretty substantial, even for libraries. It’s actually a losing proposition for Google to be treated as a library, because the digital reproductions of a library are limited to the premises of the library. That’s the physical premises of the library.
I’m also a bit wary of Google Print after reading a letter about the Google Print contract on the Library Law blog.
Now, assuming that the contract with Google Print wasn’t quite as odd as it appears to be- if Google actually was acting like a library- it would still need to rely on a fair use argument to do what it plans to do.
This is what I see:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
Currently, this would weight against Google IMHO… unless they change the contract or actually act as agents of the library, which their current contract reportedly does not allow. This is the one that is in Google’s power to fix, and they probably should if they want to make a serious fair use argument.
(2) the nature of the copyrighted work;
Sometimes for Google, sometimes against Google.
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
Against Google, I believe.
(4) the effect of the use upon the potential market for or value of the copyrighted work.
This is the one that will be heavily debated, and actually does need some research performed to get a satisfactory answer. There will be arguments made for both side. I fear that strong IP proponents will win this argument, without actually considering the merits. I don’t know the answer to this, but I hate seeing something decided in that manner… this is where we need to work.
I’m sure there are better arguments to include here.
[Update] Mary Minow points out (on Copyfight) that there’s nothing to lose by being a section 108 library, you still get fair use either way. I completely agree with that correction.