I haven't been following the Google Book Search drama too closely, but a couple of good arguments have been going on in the blogosphere this weekend about it.
Here is Lessig's pro-Google argument (it's a video), and here is
Brian Dear's rebuttal. I don't agree with several of Dear's points.
Lessig compares GBS with serving thumbnails on products like google image search, which is was found to be valid fair use in the Kelly v Arribasoft case. Dear contends that while the display of book "snippets" may be protected by fair use, if Google is making a full copy of the book and then generating snippets from it, fair use certainly doesn't cover that initial full copy, as in RIAA vs MP3.com.
However, in order to generate a thumbnail, one also needs to make a copy of the original image-- by downloading it. Then, the original is processed to produce a thumbnail, and the original is deleted. The GBS implementation can easily follow the same process: Make a copy of the book and index it. For each search term in the reverse index into that book, create a snippet of a few lines around that term. Once you are done, delete the full copy. At a high level, both processes are identical. Kelly v Arribasoft says that following this process to produce a transformation of the original work is fair use.
The key is the transformation-- no one considers the thumbnail to be a replacement for the original image. Similarly, a 3 line snippet is no substitute for the book. On the other hand, an mp3 album is easily a substitute for a full album on CD. This is the main difference between this scenario and the MP3.com case.
Lessig claims that GBS would give us access to a significant chunk of our past that would otherwise be either lost or expensive to learn from. This is a common theme in a lot of Lessig's writing. Dear claims that this doesn't matter: "copyright is copyright," he says.
That is true, copyright is copyright. However, The whole point of copyright is to give authors adequate economic incentive to create, so that they may enrich our culture. GBS is a clear example of a technology that has the potential to
greatly enrich our culture, by allowing free access to otherwise hard to reach information. A good friend of mine, Joshua Steinman, wrote
an article for the Chicago Maroon where he presents his own solution to the GBS controversy, that explains this point fairly well:
To the extent that the history of humanity is a history of recorded text, written work in spirit belongs to the canon of our collective soul, and, in a pure realization of culture, written words would belong to the collective consciousness, and would be easily accessible. [...] electronic categorization presents the next best option for the efficient collection of human knowledge.
I agree with
Randy Picker of the UChicago Law School that although a market failure in copyright justifies fair use, Google needs to give a simple method for publishers to opt-out of the snippets, similar to how websites can opt-out from being included in a web search index. Fair use and an opt-out mechanism would allow GBS to provide a great service to society while respecting the rights of publishers and authors. Rights that they aren't even benefiting from if the books are out of print.
Personally, I can't wait until this lawsuit is over, so that Google can build out GBS and release a Book Search API. Picture this scenario: You are writing a history research paper and you need a quote. Instead of spending hours at the library, you just select a few words in your word processor. Right-click. Select "Find Related Quotes on GBS", and instantly find the most relevant quotes from the most important books in the field (author data, bibliographies, and a book's text should give GBS enough data to come up with pretty good results). I'm sure there are thousands of undergrads and grad students that would kill for that feature.