Now that a judge has rejected
the "settlement" between Google and the Authors Guild, many people are asking what will happen next. There may be appeals or alternative settlements proposed, but given my previous statements
on the settlement, it'll probably come as little surprise to people that I agree with Tim Lee that Google should go back to standing up for fair use
. It should take this fight on and show that its scanning of such books is fair use, and not infringement at all. It should show that it doesn't need any kind of settlement, because it's not violating copyright law. And, as we've discussed, it now has more caselaw on its side. Since the original settlement came about, Turnitin's database of the works of others was found to be legal
, which many people are realizing helps Google's case
quite a bit.
I think the failure of the settlement may strengthen Google's fair use argument. Fair use exists as a kind of safety valve for the copyright system, to ensure that it does not damage free speech, innovation, and other values. Although formally speaking judges are supposed to run through the famous four factor test to determine what counts as a fair use, in practice an important factor is whether the judge perceives the defendant as having acted in good faith. Google has now spent three years looking for a way to build its Book Search project using something other than fair use, and come up empty. This underscores the stakes of the fair use fight: if Judge Chin ruled against Google's fair use argument, it would mean that it was effectively impossible to build a book search engine as comprehensive as the one Google has built. That outcome doesn't seem consistent with the constitution's command that copyright promote the progress of science and the useful arts.