GBS Blogging: The Fair Use Counterfactual

Matthew Sag joins the scholarly discussion of the Google Book Search case with this draft:

I argue that the fair use issues in relation to the Google Book Search Library Project have been largely misunderstood. Although Google had a very strong set of arguments relating to fair use, it was not likely to receive the courts unqualified approval for its massive digitization effort. Instead, the most likely outcome of the litigation was that book digitization would qualify as a fair use so long as copyright owners were given the opportunity to opt out of inclusion in the book database and that opportunity was made freely available at a cost that was essentially trivial.

From this perspective, the terms of the settlement did not differ significantly from the most likely outcome of the litigation. Essentially, the opt out that fair use would likely have required has been replaced by the ability of copyright owners to opt out of the class-action settlement and the significant opt-out and modification opportunities within the settlement itself.

I think this is an incomplete story; there’s a lot in the shape of the Consumer Purchase and Institutional Subscription programs that couldn’t have been predicted just from reading the fair use tea leaves. But Sag does a nice job connecting the dots of the parts of the story he does tell. He shows that the endless debates from the last four years over whether Google Book Search was a fair use aren’t moot in a post-settlement world; we see their shadows in the settlement itself. In the article, he also drops this tantalizing hint:

Peter DiCola of Northwestern University and I are working on a separate article in relation to the Google Book Settlement.

I await it eagerly.