Google's major new initiative is to undertake the task of digitizing the world's collection of books so as to make them searchable. The very idea is audacious, but what is more so is that Google plans to copy without first seeking the permission of the owners of these works. Google Print would make available what is, by conventional measures at least, the highest grade of information--books produced by millions of the world's leading scholars. This is in stark contrast to the inconsistent quality spectrum one encounters through other online sources such as peer-to-peer networks and blogs, where there currently exists little mechanism for peer review or other means of quality control. What Google proposes to do is either the largest example of copyright infringement in history or the largest example of fair use in history.[...] Two major lawsuits have been filed against Google. The American Association of University Presses, which represents 125 university presses, has sued Google, seeking a declaration that Google is committing copyright infringement by scanning books and an injunction against Google Print. A second lawsuit, a class action representing "published authors and The Authors Guild," seeks declaratory and injunctive relief and money damages as well. The outcome of these lawsuits is far from clear and the stakes are huge.[...] Part I of this Article will set out the complex set of facts leading up to the filing of the Google Print lawsuit. Part II will examine the legal and doctrinal issues presented by these facts. I will argue that plaintiffs have a solid prima facie case for massive copyright infringement on a scale never before seen. Google, however, will be able to counter with a compelling and innovative use of the fair use defense. Part III will begin to develop an economic and policy framework for examining and debating the various policy issues raised by the Google Print project and by internet search engines more generally. This analysis will seek to answer important questions regarding the shape and structure that regulation of internet search engines should take. I will argue that courts seeking to maximize social welfare should adopt a bifurcated approach under which fair use rights are accorded to Google with respect to the copyright holders of orphan works, but not with respect to the holders of non-orphan works. This approach is necessary to deal with the legacy problem presented by orphan works created with non-digital technologies, and thus, associated with a more onerous set of transaction costs attached to their accessibility. On a going-forward basis, however, creators of works will be properly incentivized under the approach developed here to protect their works. Thus, over time, a non-bifurcated regime of regulation will emerge. This will perhaps delay, but not impede, the development of Google Print, or a functional equivalent, and will foster the development of a richer market in books and creative works more generally.
The Half-Fairness of Google's Plan to Make the World's Collection of Books Searchable,
Mich. Telecomm. & Tech. L. Rev.
Available at: http://repository.law.umich.edu/mttlr/vol13/iss1/1