In this nice round-up of Google’s current fair use struggles, Jessica Litman is quoted, saying “If Google is wrong about fair use, it probably has to go out of business.” I’ve followed Litman’s work closely, and I think she accurately gives a sense of the company’s vulnerability here. However, I’ve also thought that the *worst* outcome in these cases would be Google’s decision to use its massive cash reserves to settle all the cases. For that would help set a precedent that might seal its (and perhaps a few other high-market-capped search engines) dominance over the field. Who else would have the cash reserves to compete in the search engine market, given the huge barriers to entry created by licensing fees? So we should be wary when “Google and AP reason together,” even though conventional economists of IP might see this as a triumph of bargaining over the anticommons.
PS: McCullagh reports on a bizarre argument from Google in one of the recent cases:
In one recent case, a Nevada man named Blake Field had written a collection of short stories and then sued Google. Field claimed his stories had been unlawfully offered as cached versions without his explicit permission. Google’s attorneys responded by questioning whether Field’s stories should enjoy the highest degree of copyright protection. The stories are “minimally creative works,” represent “simply” Field’s “ramblings” and “are certainly not works that are deserving of any enhanced protection,” Google said. Its attorneys added that Field had “spent only three days” writing the stories.
As Litman says in the article, that’s a “silly” argument. But it does raise a larger question in copyright–whether the law really *ought* to protect, say, ramblings or racy photos as much as other works. Distinctions may not be administrable–and as I’ve suggested earlier, a “classic” work may be rightfully given *less* protection simply because of its “classic” status (in order to enhance access to it). But copyright policymakers ought to consider the “uniformity costs” of any legal regime here.