I have been going down the rabbit hole of copyright, fair use, and the Google Books Settlement recently. This article is a great summary including a lot of the peripheral issues, but the "2003 law review article" linked in TFA is nigh unreadable to me, compared to the actual legal opinions and briefs[0].
They are a couple of fascinating documents. The Authors Guild seems gobsmacked by the final ruling, and so am I. Perhaps the SCOTUS was correct to turn down hearing the case, if only to let the issue settle a little more, but it really feels like it's likely to be overturned in the near future.
There are some interesting tidbits in the opinions:
1) In the definitive ruling, the judge decides that the harm done to the market for the books is negligible, or overcome by the transformative "purpose" of the the usage ("purpose" is significant because most examples of fair use include some type of new creative "expression"). This is surprising to me.
2) Google Books is ruled fair use in part because the book descriptions (and snippets?) are metadata describing the books, information that should not be controlled by the authors.
The final ruling in Authors Guild v. Google was really just a footnote to the whole saga, though. The article barely mentions it.
The article focuses on the failure of the class action settlement, due to the "perfect being the enemy of the good" (librarians and individual authors objected to the settlement because they hoped Congress would pass a law to free orphan works, but what actually happened is that no progress has been made).
The battle lines around orphan works are interesting because they don't really follow the same contours as do a lot of the other disagreements about copyright law. From what I've seen, the main opponents of freeing orphan works are individual content creators and the organizations that purport to represent them like ASMP.
The fear I gather is that large content users won't make much of an effort to contact rights holders and will use orphan works legislation to just take it for free.
And this is one reason why i believe that copyright should require a minimal-fee registration every ten years. If you keep your registration current, there is no effort required to contact you. If you can't be bothered to do that, your copyright clearly isn't worth much to you and expires. Either way, the status of the work is unambiguous.
In the case of something like a photograph, that means a minimal-fee registration on each photograph every 10 years. This is also exactly the sort of effort that opponents of orphan works legislation feel that large content corporations will take advantage of when all the little guys forget to renew.
I'm actually mostly for orphan works legislation but I understand the perspective of the opponents.
Wouldn't it be easy to have a provision for bulk registration?
Like, "renew the photographs with SHA's .....", and then providing a simple tool to list all the SHA's of all files with a given extension in a directory?
> 2) Google Books is ruled fair use in part because the book descriptions (and snippets?) are metadata describing the books, information that should not be controlled by the authors.
It would be very interesting if, instead of showing verbatim snippets from books, there was an appropriate, high quality machine generated summary. This would be a genuine transformation of the source material.
[As a layperson] the most convincing argument the Authors Guild makes is given I think in their SCOTUS petition: that Google's "fair use" is sidestepping a legitimate business opportunity for the rights holders. Books are not just the paper they're printed on, and authors already as a matter of course hold the rights to plays, movies, etc adapted from the text. Particularly when there is no new expression, it seems to me you are just getting away with not licensing the data. This argument is one of the least-covered in the briefs, however. So.
If I were to make a bar bet, based on my limited knowledge, I would say that any bolder attempt to use mass digitized books for a "transformative purpose" like a chatbot or AI would not pass scrutiny (which kinda sucks, because that would be awesome). That's what I mean by overturned -- perhaps the current GB usage is fine because of point 2) above.
Of course, like many Court issues, the best solution (as yohui alludes above) seems to be to have Congress fix things with real law, such as to create compulsory licensing scheme like in music.
A legitimate business opportunity affects 1 part of the 4-factor fair use test. There are plenty of other cases where things were found to be fair use despite a market existing. I've met a lot of people who have the same gut feeling that you do, but the legal history is much more complicated than that.
They are a couple of fascinating documents. The Authors Guild seems gobsmacked by the final ruling, and so am I. Perhaps the SCOTUS was correct to turn down hearing the case, if only to let the issue settle a little more, but it really feels like it's likely to be overturned in the near future.
There are some interesting tidbits in the opinions: 1) In the definitive ruling, the judge decides that the harm done to the market for the books is negligible, or overcome by the transformative "purpose" of the the usage ("purpose" is significant because most examples of fair use include some type of new creative "expression"). This is surprising to me. 2) Google Books is ruled fair use in part because the book descriptions (and snippets?) are metadata describing the books, information that should not be controlled by the authors.
[0] http://www.scotusblog.com/case-files/cases/authors-guild-v-g...