[Daithi]

Taylor514ce,

You seem to be confusing legal settlement with legal judgment. A judge did not rule against Google after hearing the case. Instead, Google decided to settle the case before arguing it in front of a judge and waiting for him to make a ruling.

Agreeing to a settlement does not automatically mean that what Google did was illegal. Google may be within "fair use," but then again they might not be within “fair use.” Google may have decided it was not worth risking a far larger fine to find out.

Providing the public with portions of a book as a means to entice people to buy the book may in fact fall within the legal definition of "fair use." However, we will never know because a judge never made a ruling.

When considering "fair use" claims judges consider four factors:

1. the purpose and character of your use (is it transformative?)
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken, and
4. the effect of the use upon the potential market

Google's purpose was not to give away other people's work. It was to allow people to enter in search terms and then return a list of books that matched those search terms. The individual could then read portions of the book to see if it provided the information for which they were looking. This is definitely transformative, because Google is adding value to the copyrighted work. So I believe the first factor falls within the "fair use" provision.

The second factor allows more material to be used from books like biographies than it does from books such as novels or plays. The theory is "dissemination of facts or information benefits the public, so you have more leeway to copy from factual works." Google was displaying portions of all kinds of work, and not just biographies. However, they were doing so in a manner that displayed information and not entertainment. So this factor might also be seen in Google's favor.

The third factor allows portions of a work to be used, but can not include the heart of the work. Google was only displaying portions of works under copyright and not the entire works. Did Google display too much of the work? Only a judge can decide. (As I said earlier though, I think they might have, which may be why they settled.)

The forth factor is also definitely in Google’s favor. What effect did Google have on the potential market? They would have stimulated book sales. I personally bought a couple of books after reading portions of books on Google that I hadn't even known existed until I did a search on Google Books.

The bottom line is that we will now never know if Google was within "fair use" provisions or not, and that a legal settlement does not mean that Google was doing anything illegal.