Is Google Print's snippet a fair use?

There's an interesting thread on Google Print at
Corante titled Just the Facts, M'am.

Karl-Friedrich Lenz notes that "Google is not displaying only one snippet per book, but thousands of them, covering every book almost completely."

Joseph Pietro Riolo wrote:

To Karl-Friedrich Lenz:

Where in the U.S. copyright law does it say that it is not okay
for Google to display thousands of snippets not to one or few
people but to many millions of people?

Here is an analogy: I have a book. 1,000 people in my town
knows that I have it. These 1,000 people don't want to buy
the same book for whatever reasons (to save money, not to kill
trees, will not keep book for long time, etc.). For the next
five years, some of them come to my house and look at my book
and copy a snippet from it (different places in book).



Seth Finkelstein wrote: I think that would be factor #1 of the fair use test, "the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes".
and *possibly* factor #4, "the effect of the use upon the potential market for or value of the copyrighted work"

[Apologies to Seth Finkelstein for my law review like citation, now corrected.]


Lenz replied: I think that serving two snippets uses more than serving only one, and serving thousand snippets uses still more.

And I think that the analysis should not be confined to the single search result report, but to the sum of all search result reports Google does on a particular work.

I think there is some relevance of the case AGU v. Texaco, 60 F.3d 913 (CA2 1995), cert. dismissed, 116 S.Ct. 592 (1995) to the present situation. The storage of photocopies of copyrighted articles in the file cabinets of the scientists is analogous to the storage of snippets on the internet. That copyright infringement was found for storage of only a few articles goes to the quantum necessary for infringement and speaks to the snippet argument. In the Texaco case, each article was individually copyrighted, but if the aggregation of multiple snippets re-creates all (or most) of the copyrighted work in the case of Google, then the issue would be similar.

Also of relevance to the quantum of use is the copyright case involving Gerald Ford's memoirs, Harper & Row v. Nation Enters., 471 U.S. 539 (1985.) The Nation magazine published a large number of excerpts from ex-President Gerald Ford's unpublished memoirs. The Nation's copying seriously damaged the marketability of Mr. Ford 's serialization rights. Apart from the snippet issue, the present situation might include a question of "how much" Google's actions damage the marketability of the author's copyrighted works.

[Note the earlier post on IPBiz, which suggests which cases Google plans to cite for its defense in the NY case.]

I liked the title of the Corante thread. Recall LB Ebert, “Just the facts, ma’am,” p. 9, Int. Prop. Today, Jan. 2003.

And of relevance to the Doe v Cahill case in Delaware, I tried to post something on Corante about the "just the facts" thread, but it didn't take. And my review of the Carhart book fell off the first page of Amazon; there may be something to the suggestion that favorable reviews are preferred at amazon.com.