My interview with Bill McGeveran is now live at Capital New York. Here’s the opening:

William McGeveran: Judge Chin has taken more than a year to write this decision; were there any surprises in it?

James Grimmelmann: At first, its length and tone. I’d been expecting a treatise on copyright, antitrust, and civil procedure. My students and I identified 76 different issues raised by objectors. When it took Judge Chin over a year to issue the opinion, I assumed it was because he was drafting a doorstop.

But no. It’s 48 pages, and that’s in double-spaced Courier, which makes it, what, 10 normal pages? He writes only briefly on most of the major issues. He cites very few cases; this is not an exhaustive analysis of each and every thrust and parry. He’s also unafraid to leave issues unresolved. He takes a strong position that he doesn’t have the power to approve forward-looking settlements like this, but when it comes to the meaty copyright, antitrust, and privacy issues—on which so much ink has been spilled—he doesn’t give definitive answers.

That makes it sound like a weak, waffling opinion. But the more I think about it, the savvier I think it is. He didn’t destroy the settlement; he just quietly deflated it. He resolved a one-of-a-kind case in a way that doesn’t warp the legal system for anyone else, he gave the parties a reasonable way forward with a much less ambitious settlement, and he let the many people who’ve been paying close attention know that their voices have been heard.

Their intention to use the court , to dodge the legislative democratic process (and in the process rewrite a shirtload of law ) , was skillfully dodged.

In the mean time the lack of access to every single blessed one of those orphans is not exactly the end of the world. The whole business has a whiff of “cumulomania” and the realm of the hungry ghosts about it.

For me, the third factor listed in the statute is a pretty strong argument in favor of fair use: “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” The portion shown to the user is tiny in relation to the whole book, which cuts in favor of fair use.— James Grimmelmann

I , of course, do not agree James. Google copies and monetizes the whole book, not just the snippet. While doing family research in the past, searching for the mere mention of an ancestors name in a book, I have wished for a way to search books easily, but to digitize whole books without the copyright holders permission is wrong.

Douglas does bring up an interesting issue. In a normal situation, the author who uses only a small portion of the work is doing exactly that. For example, suppose I wanted to quote one paragraph from someone else’s copyrighted book. That one paragraph is all I’d be using for my own work. The use would be one-time and the amount would be fixed.

I would not be copying the entire book, then showing one paragraph to one person, another paragraph to another person, and so on, thereby using the entire book to enhance my search engine. And this use of “snippets” would be coupled with the issue of revenue from ads displayed next to the snippets.

James, I find your interview pretty depressing. First, you suggest that “the parties would start with the conduct at stake in the original lawsuit—Google’s scanning and searching—and settle that, on the usual opt-out basis, in exchange for some compensation.” But you also suggest that Google’s conduct is legal. It seems, then, that Google will have to pay compensation just to avoid having to go to trial - and in the process, providing tacit acceptance of the plaintiffs’ arguments that Google has infringed.

Then you suggest that Google could offer “authors and publishers the book sales and the institutional subscription, if they choose to participate.” But they have already offered book sales through their partner programs, and an institutional subscription without the orphan works is not a viable product.

The idea of a settlement is too depressing to contemplate.

Frances:

In a normal situation

You do realize, Frances, that what you are claiming as “normal” is actually a rather comparatively rare use case nowadays? Google serves up an estimated 3 billion search queries per day, and each search displays tens of snippets.