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Originally Posted by Ninjalawyer
I would suggest avoiding such definitive statements like your first sentence, as it's certainly not clear that Google has violated millions of copyrights....
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It is
screamingly obvious they've violated a huge number of copyrights.
That's why the settlement agreements keep ketting shot down, because they invert the very structure of copyright law, without any legal authority to do so.
If they stopped at search, that might fall under fair use. But they are also planning to distribute those ebooks (see below or read the amended settlement agreement -- Article II § 2.1), which is a direct violation of copyright.
The US has no laws that deal with orphaned or out-of-print works. As such, Google has absolutely no right whatsoever to distribute those works. Further, this is not something the courts should sort out, it should be up to Congress. Legislature writes the laws, the courts should only decide whether or not those laws are constitutionally sound.
Orphan works do need to be fixed, and the final structure could look very similar to what Google is in fact proposing. But none of the parties to the settlement or lawsuit have the legal authority to do so, nor is there any indication whatsoever that Google plans to limit their scanning project to orphaned works. They are sucking up entire libraries and hoping no one stops them.
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Originally Posted by ninjalawyer
As far as opting out goes, Google actually has a very good fair use argument and may not have to provide an opt-out at all.
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They do not have the legal right to distribute the books they've scanned. Thus, opt-out is not a "good option," it's an illegal option as it violates those copyrights.
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Originally Posted by ninjalawyer
To be clear, Google is not just making books available for free....
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It never was. Their plan has always been to sell the books and/or use them to generate ad revenue.
The amended Google Books Settlement explicitly says that Google has the right to, and I quote, "sell subscriptions to the Institutional Subscription Database, sell individual Books, place advertisements on Online Book Pages, and make other commercial uses of Books, all as further described in this Amended Settlement Agreement."
That doesn't sound like "search only" to me. Or a lot of authors.
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Originally Posted by ninjalawyer
their motivation is only one factor (if it's a factor at all) in the determination of a fair use defense.
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Not really.
I can quote a section of a copyrighted law when writing a review of the content. However, my purposes for writing the review can be 100% commercial in nature and still be classified as fair use.
Google's motives are not relevant. They can swear up and down that they are not evil, and they only want to improve access or preserve the works, and can be 100% honest on these counts. It's still copyright infringement on a truly massive scale.