In response to Sivas post about Google Print and fair use, Laura Quilter weighs in, hoping to push the definition of "library" in Googles direction and toward a more expansive view of fair use.
Google's best case, it seems to me, is that it's hoping to provide "meta-information" about the underlying copyrighted works. Google has a few appellate cases in its corner Kelly v. Arriba Soft to start with, then Ty v. Publications International, and (I'd say) Sony v. Bleem, and Triangle Publications v. Knight-Ridder. But Google has to deal with the scope of its project which invites comparisons to less favorable opinions, like A&M Records v. Napster and UMG Recordings v. mp3.com (a district court case) and it needs to couple its Kelly argument with leverage from cases approving "intermediate" copying under certain circumstances (e.g., Sega v. Accolade). The opt-out option makes Google look less like the bad guy, but it may not help the fair use claim which I think is plausible but novel, and far from a slam dunk.
So, Laura suggests, Google should draw on the beneficence associated with "libraries" (think of George Carlin's description of baseball, which is all about going "home"). Even fair use skeptics have to agree: libraries do and should get a lot of slack under copyright law.
Is Google a library? Is there an "essence" of library a definition that Google can meet? Or can we say that Google is a library even if Google doesn't? Or what if Google says that its a library, but "we" (perhaps a court) say otherwise? Whose analysis gets deference? What if Google and a "real" library (Harvard? Stanford?) sign an agreement in which the contract specifies, whereas, Google and Stanford agree that Google provides library services via Google Print? Or should we simply conclude that Google should be characterized as a library because Google is doing something noble, and we all know that libraries are in the nobility business?
All of which is a roundabout way of suggesting that we should be focusing more on what Google does than on what Google is.
By the way, what if the service were named "Microsoft Print"? Or (since that sounds unfair to Microsoft) "Dr. Evil Print"?
[Siva] quotes this argument approvingly, in which the author distinguishes between rhetorical appeal to libraries and a "real" fair use argument.
And as far as fair use is concerned, I don't think that this sort of analysis is distracting at all; I think that it gets at the heart of the problem. As a copyright lawyer I'm always skeptical of characterizing an argument as an "authentic" or "real" form of argument. Copyright is too plastic (to borrow someone elses word), and it operates at too many levels, for all that. "Google is doing what a librarian does" is a perfectly valid form of fair use argument the case reporters are filled with fair use decisions that are framed this way even if at the end of the day I think that the argument likely fails on the merits. Non-lawyers who encounter the fair use statute are tempted, understandably, to treat the text as filled with magic words (and as improved by magic words supplied by the Supreme Court, like "transformative"). The magic words are almost uniquely unhelpful, either as guides to what courts actually do, or as guides to what courts should do.