Quote:
Originally Posted by murraypaul
The four standard factors to be considered in a fair use defense are:
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.
Here:
1. The use is of a commercial nature. Google want to sell the scanned books, and also to use them to drive more page views, and hence more advertising.
2. The works are 'normal' works that have previously, and may still be, commercially available.
3. Google is scanning the entirety of each work.
4. Google making the work available must significantly reduce the value of the ebook rights of the work.
Doesn't seem like there is a huge amount of wiggle room there.
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You make good points (and your breakdown of the fair use section in U.S. copyright law is correct). However, keep in mind that Google may be scanning the entirety of the book, but the amount their reproducing is only a small snippet, so there's a lack of clarity here in the law (because of the distinction between intermediate copying and final use). As far the nature of Google's use, they are not selling the books in most cases. In most cases the books are out of print, but if they are available commercially Google is providing links to sites like Amazon.
As far as reducing the value of ebooks, that is not the case. Google is not making books available for free (unless they are in the public domain or Google has permission). What they are doing is providing search capabilities for books, and an ability to buy the book if the book is purchasable. So this actually enhances the value of ebooks because it makes them easier to find.
None of the factors you list is determinative, and must all be considered. That's why this isn't an easy issue. I'm not going to say Google has a slam-dunk with a fair use argument, because they don't. But it's also not a slam-dunk that Google is violating copyright either. There's fundamental legal questions that haven't been answered yet, so no one can say definitively.
Quote:
Originally Posted by BeccaPrice
Do you have a link? because I can't think how wholesale scanning for profit has a fair use case to be made. (but then, I'm not a lawyer.)
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There's a (very) long legal analysis
here from the New York Law School Law Review. I'd be lying if I said I'd read all 140+ pages of it, but there's an interesting analysis if you scroll down on the issue of fair use with respect to Google books.