The Google Book Settlement and the Fair Use Counterfactual; Social Science Research Network, 7/22/09

Matthew Sag, DePaul University College of Law via Social Science Research Network; The Google Book Settlement and the Fair Use Counterfactual:

"Abstract:

This Article compares the Settlement to the most likely outcome of the litigation the settlement resolves. The counterfactual I explore in some detail assumes that the court would have found that the digitization necessary to construct the Google book search engine was protected by copyright law’s fair use doctrine. Although this issue is now unlikely to be litigated, it is nonetheless essential to almost any frame of analysis of the Settlement.

I argue that the fair use issues in relation to the Google Book Search Library Project have been largely misunderstood. Although Google had a very strong set of arguments relating to fair use, it was not likely to receive the courts unqualified approval for its massive digitization effort. Instead, the most likely outcome of the litigation was that book digitization would qualify as a fair use so long as copyright owners were given the opportunity to opt out of inclusion in the book database and that opportunity was made freely available at a cost that was essentially trivial.

From this perspective, the terms of the settlement did not differ significantly from the most likely outcome of the litigation. Essentially, the opt out that fair use would likely have required has been replaced by the ability of copyright owners to opt out of the class-action settlement and the significant opt-out and modification opportunities within the settlement itself.

This Article contains a detailed discussion of the terms of the Settlement. "

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1437812