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Fair Use as Small Ball?

Siva Vaidhyanathan has done me the great favor and honor of replying to my comment on his CJS piece on fair use. He writes, amid an eloquent post:

The Google case should drive us to ask big questions about our libraries and the accessibility of knowledge generally. We should not rush to legal judgement any more than Google and these libraries should rush to publish a crappy database of page images (which is all they seem to be doing). Let’s deliberate and create real laws and policies that make this happen in a reasonable and effective way. Is that so crazy?

Excellent stuff, and thanks, Siva, for taking so much time with this!

At the core of this conversation, I think that I agree with just about everything that Siva says. We may disagree about some things at the margins. And I stand by my original position, way back when, that Google’s pushing its fair use claim is likely, ultimately, to be healthy for the doctrine, rather than a damaging rush to legal judgment. Even if Google loses. But Siva has articulated the central question, again, in exactly the right way.