Larry Lessig recently posted a video version of long slide presentation on fair use and Google Book Search, which has prompted some very thoughtful reaction from Randy Picker (in conversation with Doug Lichtman and Geoff Manne) and Rebecca Tushnet (sorry; can’t get the link to the post just right).
Randy appears to squeeze Larry’s argument into a transactions cost corset, which, as Rebecca reminds us, doesn’t quite fit. But I read Randy’s argument as suggesting that the fair use issue at stake in Google Book Search, at least as Larry and Google present it, is really quite narrow, since Google itself is proceeding on a consent-basis with respect to copyrighted works in print. If that’s right, then the fuss over the project may be overblown; this may turn out to be not-quite-a-bet-the-Internet-case after all.
UPDATE: Along with Randy, I understand that Google’s position is that the “opt out” option that Google offers applies to books in their entirety. If a copyright holder objects, the book disappears from the database. That’s my (and Randy’s) interpretation of Larry Lessig’s characterization of what Google is doing. As a descriptive matter, is that an incorrect interpretation of Google’s position? Does Google take the position that fair use protects Google’s making “snippets” of those copies available in response to search requests, even over publishers’ objections? (Google does, I believe, take the position that fair use protects snippets of copyrighted works if publishers say nothing.) So that the negotiating, then, has to do with whether publishers will allow more than mere snippets to be made available.
The question in short, is this. What’s the baseline, and what is the minimum that Google is willing to accept? For copyrighted works, is the baseline “copy + snippet,” so that Google’s opt-out policy apply to deviations downward, and the least that Google will accept is zero, or is the baseline “copy and full-text results,” and publishers may by objection negotiate down to Google’s offering only snippets — an alternative minimum result? (It’s conceivable that “copy plus full text” is the baseline and zero search results is what Google is willing to accept, but I haven’t heard any discussion suggesting that this is in fact the case.)