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Fair Use is a four-part test. Chin has concluded that the book scanning project by Google meets all four parts of the fair-use test. You are taking a single-tes

Fair Use is a four-part test. Chin has concluded that the book scanning project by Google meets all four parts of the fair-use test. You are taking a single-test discussed in the article ("Effect upon work's value") and assuming it's the only criteria. You can learn about the four-factors (which is judicial precedent) here: http://fairuse.stanford.edu/overview/fair-use/four-factors/ http://fairuse.stanford.edu/overview/fair-use/four-factors/ The four tests are: * "Purpose and character" - Your use of the work must be substantially different (transformative). Generally, it is considered that you must be adding some new expression to the work. From the Standford link above: "At issue is whether the material has been used to help create something new or merely copied verbatim into another work". Clearly any attempt at sharing files in their entirety (or near-entirety) for the purpose of distributing the original film would fall down on this test. * "Nature of the Copyrighted Work" - This is basically an acknowledgement that you can't copyright facts. There's significantly more leeway to copy from something like the phone book than there is from fiction. Most of the time file-sharing copyrighted torrents without permission and Google Books are probably on similar grounds here. * "Amount and Substantiality of the Portion Taken" - The less you take, the better off you are. Google Books is in an interesting position here in that they _take_ the entire work, but they only _make available_ very small sections of the original work. In the case of the torrents, someone is making available all (or most) of the original work. It's definitely going to fall down here. * "Effect upon work's value" - Basically, does the use in question have a significant negative effect on the market where the original work is in use. In the Google Book's case Chin noted that it didn't seem to negatively impact the market that the books were being sold in. The MPAA and RIAA have argued in court successfully so far that distributing torrents leads to direct financial harm. I find some of their arguments suspect (or at least lacking evidence), but courts have generally been receptive to this argument. Courts will determine that torrents fall down on this test as well. Finally, it should be noted that Fair Use is an "affirmative defense". That means you can't get a judge to dismiss a lawsuit by saying "Fair Use". You'll need to go to trial. And the burden will be on you to show that the use was "Fair Use". This will cost a small fortune. So, assuming arguendo, that this ruling did create a precedent that torrenting was fair use, it would still be strongly discouraged as you'd have to go to trial every time to show that it wasn't.

droopybuns 13y ago
Thanks for this intelligent response to my glib comment. I learned something & I appreciate it. I disagree with the judge that Google should be allowed to do this, when they have a revenue model built around pageviews & advertising that is built on other people's content. It just seems to me that the argument is "We don't make money from people viewing [THE BOOK], we make money from people viewing the ads around the [THE BOOK]!" So, replace books with [NBC's THIRTY ROCK]. Let me put my own ads in. Is that cool with e'rybody? It doesn't seem right to me.
- magicalist 13y ago
  You can (and some people do) say the same thing about a web search engine. It doesn't exist and has no purpose without other people's content. However, it is not the content that the search engine is serving, it is serving the ability to search that content, which is something completely different. That's what's meant by transformative, and there are many many things that could not exist if you could not take other people's ideas, transform them substantially, and release the results. Copyright and fair use is a balancing act, and I agree with Judge Chin that the benefits to having all of the printed word fully searchable (someday, at least) is a middling loss for the content creators and a huge gain for the public. To address your specific analogy: you aren't being deprived of being able to release your work, and they aren't releasing your work with ads inserted, so I don't think it really applies. Google Books doesn't have ads today, but I wouldn't have any problem with them on the search results page (just like I have no problem with (text) ads on web search results pages) since they are in fact providing content very distinct from your copyrighted work.
- ncallaway 13y ago
  I don't know if it's enough to simply ask the question: "Is Google making money off of this." Commercial works can be Fair Use. Really, the commercial vs. non-commercial aspects fall into the "Purpose and Character" test. It's true that non-commercial uses are more likely to be held to be transformative (art projects, educational work, etc). It's not true that just because a work is commercial it isn't Fair Use. A good example might be the way the Daily Show uses news clips. Technically, these clips are covered by copyright. The Daily Show could use these clips without permission through the doctrine of Fair Use. It's pretty clear that the Daily Show is a commercial product, but it uses the clips in a clearly transformative manner (that is, to parody, critique, etc). Additionally, I think you may be overestimating the amount of a book Google Book Search shows when it doesn't have permission of the author of the book to show specific amounts. Here's an example search in a book that they don't have permission to display a complete preview: http://books.google.com/books?id=CIl9fxeIQIYC&q=National+Commision+on+Terrorist+Attacks+Upon+the+United+States&dq=National+Commision+on+Terrorist+Attacks+Upon+the+United+States&hl=en&sa=X&ei=WUOFUtKOHOn6iwL6xYHICg&ved=0CDsQ6AEwAg http://books.google.com/books?id=CIl9fxeIQIYC&q=National+Com... Note that they merely show the search results with brief snippets around the matching results. So, instead of "we make money from people viewing the ads around the [THE BOOK]!" it would be more accurate to say "we make money from people viewing the ads around snippets of [THE BOOK]!". It really goes back to those four factors. If you play NBC's Thirty Rock with your own ads mixed in or around the content, you'll fail most of those four factors. If instead you play a short snippet of Thirty Rock then proceed to provide a new expression based upon that snippet (a critique, or a parody, or an interpretive dance) you would be quite likely to fall within the bounds of Fair Use. Even if you put ads around it. Though, again, I'll note that Fair Use is an affirmative defense, which means you don't really get to bring up the defense until you go to trial. Generally, it's best not to rely on Fair Use unless you have deep enough pockets to go to trial over the issue.

droopybuns 13y ago

Thanks for this intelligent response to my glib comment. I learned something & I appreciate it. I disagree with the judge that Google should be allowed to do this, when they have a revenue model built around pageviews & advertising that is built on other people's content. It just seems to me that the argument is "We don't make money from people viewing [THE BOOK], we make money from people viewing the ads around the [THE BOOK]!" So, replace books with [NBC's THIRTY ROCK]. Let me put my own ads in. Is that cool with e'rybody? It doesn't seem right to me.

magicalist 13y ago
You can (and some people do) say the same thing about a web search engine. It doesn't exist and has no purpose without other people's content. However, it is not the content that the search engine is serving, it is serving the ability to search that content, which is something completely different. That's what's meant by transformative, and there are many many things that could not exist if you could not take other people's ideas, transform them substantially, and release the results. Copyright and fair use is a balancing act, and I agree with Judge Chin that the benefits to having all of the printed word fully searchable (someday, at least) is a middling loss for the content creators and a huge gain for the public. To address your specific analogy: you aren't being deprived of being able to release your work, and they aren't releasing your work with ads inserted, so I don't think it really applies. Google Books doesn't have ads today, but I wouldn't have any problem with them on the search results page (just like I have no problem with (text) ads on web search results pages) since they are in fact providing content very distinct from your copyrighted work.
ncallaway 13y ago
I don't know if it's enough to simply ask the question: "Is Google making money off of this." Commercial works can be Fair Use. Really, the commercial vs. non-commercial aspects fall into the "Purpose and Character" test. It's true that non-commercial uses are more likely to be held to be transformative (art projects, educational work, etc). It's not true that just because a work is commercial it isn't Fair Use. A good example might be the way the Daily Show uses news clips. Technically, these clips are covered by copyright. The Daily Show could use these clips without permission through the doctrine of Fair Use. It's pretty clear that the Daily Show is a commercial product, but it uses the clips in a clearly transformative manner (that is, to parody, critique, etc). Additionally, I think you may be overestimating the amount of a book Google Book Search shows when it doesn't have permission of the author of the book to show specific amounts. Here's an example search in a book that they don't have permission to display a complete preview: http://books.google.com/books?id=CIl9fxeIQIYC&q=National+Commision+on+Terrorist+Attacks+Upon+the+United+States&dq=National+Commision+on+Terrorist+Attacks+Upon+the+United+States&hl=en&sa=X&ei=WUOFUtKOHOn6iwL6xYHICg&ved=0CDsQ6AEwAg http://books.google.com/books?id=CIl9fxeIQIYC&q=National+Com... Note that they merely show the search results with brief snippets around the matching results. So, instead of "we make money from people viewing the ads around the [THE BOOK]!" it would be more accurate to say "we make money from people viewing the ads around snippets of [THE BOOK]!". It really goes back to those four factors. If you play NBC's Thirty Rock with your own ads mixed in or around the content, you'll fail most of those four factors. If instead you play a short snippet of Thirty Rock then proceed to provide a new expression based upon that snippet (a critique, or a parody, or an interpretive dance) you would be quite likely to fall within the bounds of Fair Use. Even if you put ads around it. Though, again, I'll note that Fair Use is an affirmative defense, which means you don't really get to bring up the defense until you go to trial. Generally, it's best not to rely on Fair Use unless you have deep enough pockets to go to trial over the issue.