from the bad-news-all-around dept
The court stepped through the fair use analysis, dropping positive notes here (commercial uses can be fair uses), here (a use can be transformative "in function or purpose without altering or actually adding to the original work," citing Perfect 10 Inc. v. Amazon.com Inc.), and here (fact that turnitin.com used the entirety of the plaintiff's work did not preclude finding of fair use). And it turned back a lot of other, small-bore challenges to the district court's fair use finding.While O'Toole rushes through these points, they're actually pretty important, since they're quite often misunderstood by people (even copyright lawyers) who claim that commercial use isn't fair use, or that using an entire work can't be fair use or can't be transformative. In this case, the court lays out why none of that is true. When the original decision came out, I suggested that all of these points could be helpful to Google in defending its book scanning efforts, since it could make pretty much the identical arguments on all points. It's scanning was a commercial use, but transformative (it was for indexing/searching books, not reading them), it was making use of the entire work, but again, in a transformative way.
Unfortunately, as we all know, Google caved in that lawsuit and settled -- though, now we're watching as many are challenging whether the settlement terms are legal or reasonable. I still think Google should have stuck with the pure fair use defense, showing that its use was transformative and different - similar to just indexing websites for linking purposes. Not only is it unfortunate that Google gave this up, because it's one less strong precedent over fair use, but it's now opened up the ridiculous claims by a bunch of other industries (newspapers, recording) demanding that Google "settle" with them as well, and hand over cash. Google's decision to back down was a big mistake, not just in terms of screwing over others trying to scan books (what most of the current complaints are about), but in denying a strong fair use precedent and making Google look like an easy place for struggling industries to demand cash.