Concurring Opinions » The Evolving Law of Fair Use

"The Google Books case would make a terrible movie. It started promisingly enough, with a cold open on Google’s ambitious book scanning project, and quickly established its central conflict, between Google and irate copyright holders. Then the plot took a breathtaking twist when it was revealed that Google and the authors and publishers had secretly been negotiating a settlement. But after the tense second act culminated in the brilliantly argued fairness hearing, the plot just tailed off. Sure, Judge Chin rejected the settlement, the Authors Guild brought Google’s library partners into the litigation, the publishers settled, and two judges found that the book scanning was fair use—but all of it had the repetitive feeling of a Bruckheimer-buster. Haven’t I seen these explosions somewhere else? Times have changed, and technology has changed, and copyright law has changed, as well. Judge Chin’s decision bringing to a close (for now) the main Google Books litigation didn’t so much make new law as draw an emphatic underline under existing doctrines. Copyright law has taken account of digitization and search technology. They are accepted parts of the legal landscape now, and future decisions are not likely to call their legality into serious question. Take the holding that search engines make a transformative use of the content they index. The Kelly, Field cases said the same—but it was possible to maintain they were other than settled law. That’s a Ninth Circuit doctrine. That’s a Web-only doctrine. That’s implied license in disguise. And so on—but no more. Search engine fair use is broadly established, to the point that even judges who deny its application on the facts before them accept the broader principle. Or take the holding that there is no discernable market for licensing short snippets to illustrate. Judge Chin, like Judge Baer before him in the HathiTrust case against Google’s library partners, viewed Google Book Search as a pure pie-higher-er. The gains from making books searchable do not come out of the pockets of authors. Indeed, by making it easier for readers to find books, book search makes it easier for authors to find readers. Judges have come to accept the idea that these long-tailed digital geese lay golden eggs only so long as they live; cut them up in search of licensing fees and there is nothing inside ..."