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Fair Use and Google: Ten Years After

Digesting the fair use reading in The Authors Guild v. Google in the Second Circuit, I went back to some things that I wrote when the case was filed, ten years ago, in 2005. What did I get right, what did I get wrong, and where and how is the jury (proverbially) still out?

From Google Sued; Books Disappearing (at The Conglomerate):

Will Google Print [as Google Book Search was then known] kill the book?

Books are really, really important things culturally, particularly in Western culture. Have been for hundreds of years. Almost everyone loves books and depends on books. And books are absolutely central to modern copyright law, both conceptually and doctrinally. (They’re even more important than authors, in my view. But I’ll take on one controversial topic at a time.) Books are fixed, limited containers of creativity. Books have beginnings, middles, and ends. Without books, we wouldn’t have “works,” and without “works” we wouldn’t know how to process questions of incentives and questions of access. We wouldn’t know where to put the author’s “moral right,” if there is one; we wouldn’t know what to refer to when we make “fair use” of a work. We wouldn’t know what to distribute, and distribution of creativity is the ultimate goal of the whole system.

If you expose the creativity without framing it in a book — and this is what Google proposes to do — all you have is data. Data that you can mix and remix and reuse and share in bits (bytes) and pieces and aggregates of new scale and scope. Data that is everywhere and nowhere, all at once.

When this happens — and Google may not do it, but I suspect that in the long run, it will happen — we’ll need to rethink not only the premises of copyright law, but we’ll also need to rethink some of our arguments about where culture comes from, where it goes, and what we do with it. This is the sense in which Google Print may be killing the book. And if the book dies, copyright as we know it ultimately dies too. (Note, by the way, how this question tracks what has been happening for the last few years in the music business, and particularly how it tracks the evolution of the concept of the copyrighted “work” in the context of sampling litigation. When copyright protects individual chords, then copyright really is protecting just data.) I confess that I have mixed feelings about this, and I haven’t come to a conclusion about where my sympathies lie. Right now I’m looking forward to, or at least hoping for, a good fight.

But there’s more. In Google Print II (here at, I characterized the case as “bet the Internet” litigation. GBS turns books into data (one might say, as Judge Leval did, that GBS “transforms” them); data means search; search means the Internet. Not to get all reductive and everything, but that, it still seems to me, just about sums it up. I was right (this case is all about how the concept of the book interacts with the concept of the Internet), I was wrong (I was somewhat skeptical of the fair use argument), and we still don’t know where, exactly, the roulette wheel will stop. Google has made an enormous bet. I wrote once that all of Internet law can be summed up in the stories represented in the movie Casablanca. That idea, too, seems to have legs. Google has put its chips on twenty-two. Les jeux sont fait. Is Judge Leval a contemporary Rick Blaine? Or will copyright find its Victor Laszlo at the Supreme Court?