First, I think that it’s fair to distinguish the TPM-like *effect* of the book form (it does tend to discourage copying) from the purposeful deployment of TPM technologies in electronic contexts. The plaintiffs are making a sort of DMCA argument. They seem to suggest that by choosing to publish their works as “books,” they are entitled to a presumption against “circumvention” of their “technology.” That’s both silly and wrong. I understand that they’re trying to distinguish Google Print (bad) from Google search (OK), but the distinction just doesn’t hold up. If it exists, it has to come from somewhere else.

Second, on the “media company” point, and speaking objectively, you’re probably right (though I pause to note that there is a “what is a media company?” issue lurking here). But the plaintiffs aren’t interested in objectivity. They’re making a rhetorical point. If Google is a “media company,” then it’s a big, commercial, *competitor.* And we know that big, commercial *competitors* aren’t entitled to rely on fair use. Don’t we?

Also, in my mind, there’s no Q that Google is a media company and not “merely” a search engine. Or, more precisely, I don’t know what the difference is. In my Emory article, I made the argument that search engines exercise editorial control over their database in a manner that’s indistinguishable from the practices of other media companies.

Eric.