Does Google have a leg to stand on?

You know, after reading the commentaries by Patry and others, I’m beginning to think that google doesn’t have a leg to stand on, fair use wise.

William Patry talks about the google/fair use problem. He writes:

I have increasingly come to find the traditional four factor fair use analysis not only unhelpful, but harmful to looking at uses that may promote the progress of science and not injure copyright owners’ interests. We would have been much better off had the 1976 Act simply said in Section 107 “Notwithstanding the provisions of Section 106, the fair use of a copyrighted work is not an infringement.” Putting four factors in the statute has made courts and the rest of us think that Section 107 either “codifies” fair use (it doesn’t), define fair use (no again), or somehow provide a way in a real case to assist in determining the outcome, and here I would say the statute does the most harm: the temptation is almost overwhelming to run through the factors, cite previous decisions about how and what the factor entails, is to be weighed etc. and then to tally up who was naughty and who was nice and to what degree. That’s an artificial approach and maybe intellectually dishonest in some cases if we reach a conclusion first and then fill in the “reasoning” afterwards. That’s what I did in my Thursday posting.

Lots of interesting comments too. Such as this one:

Google’s digital files of copyrighted books must be deleted forthwith, but the library can keep theirs, since one copy is okay under 108. The library is admonished and properly apologetic, and since Google indemnifies the library in the contract, it doesn’t set the library back if there are any damages or legal fees.

Simple. Clean. And no messy side effects, which could come from a decision against Google based on fair use. (For example, a decision against Google on fair use could then be used to challenge the opt-out protocols used by search engines that crawl the web — and that could really mess up Google’s game.)

If Google still insists on a decision under fair use, what they have to do is buy a bunch of copyrighted books and scan them, instead of getting them from the library. That would put Section 108 out of the picture and place all the focus where Google seems to want it placed.

But then, how would Google get millions of out-of-print copyrighted books if they cannot use libraries? The authors and publishers would be perfectly happy with a Section 108 decision, because it would effectively stop Google’s project.