Back in September of 2005, a certain legal blogger had this to say about the then-nascent Google book scanning project:
And on the Google issue, I share publishers’ concerns. . . . Absent permission, I see no way for it to be considered fair use or covered by Section 108.
The chutzpadik manner in which Google has gone about this is breathtaking, and indeed what they have done so far is, in my opinion, already infringing, that is the copying of the books even without making them available. . . . Telling publishers they can opt-out is not the way the Copyright Act works . . . .
What makes it so remarkable is that it was written by none other than Bill Patry. That blog post has since been removed, but thanks to the magic of the Internet Archive’s Wayback Machine, we can still read it today. In fairness, Patry may have misunderstood the details of the book scanning project or the details may have since changed. And everyone is entitled to change their minds as they see fit. But it’s interesting nonetheless to see what Patry was thinking at the time.
In the comments, after stating that the project “will only happen with permission, and that’s as it should be,” Patry takes a view that I suspect many can relate to:
Looking at my own motives, I want as many people to read and use my new treatise when it comes out, and money is not the motivation for doing it, but I never would have spent 6 years on this edition alone (add to that the 6 years on the last edition) if Google could just scan it and make it available. . . . I would like to meet an individual who has worked for 12 years on something and says to the multibillionaries [sic] who run Google, “Hey, take my stuff for free, I believe in culture and culture means you guys can have it.”
Fred von Lohmann then chimes in to argue why he thinks Google’s fair use argument is strong:
It is important to [be] very clear about exactly what Google intends to do here. In particular, the fact that Google will only display a small portion of copyrighted materials makes it hard to see how this would result in the kind of market substitution that the fourth factor is concerned with.
To which Patry responds rather snidely:
I think Google’s willingness to let publishers share in revenue for ads that Google puts in publishers’ own books is very generous, and of course, the placement of ads in previously ad free works will advance culture in significant ways.
And the ability of publishers to pull their works out, is, well, pure noblesse oblige. I have to hand [it] to those Silicon Valley billionaires; they really know how to both turn a profit off of other’s backs while marketing themselves as cultural liberators . . . .
Don’t get me wrong; Google is a great search engine, but they are no one’s liberator or cultural defenders.
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© 2013 Devlin Hartline. Licensed under the Law Theories Public License 1.0.