Alas, this article perpetuates one of the myths about the
publishers' suit against Google, that somehow it had something to
do with those "snippets." That was never the issue. The crux of
the matter was Google's attempt to substitute an "opt out" regime
for the traditional "opt in" regime of copyright law.
It was also not the Google Book Search program as a whole that
was in question, but only the Library Project. Many of us
publishers joined the Google Book Search program soon after it
was first announced and believe that it is definitely a Good
Thing, making the functioning of the economic "long tail"
possible.
The problem with the "opt out" approach, especially for smaller
presses like ours, was that it imposed an unconscionable burden
on us to research all of our past titles for digital rights in
order to tell Google whether it could include those titles or
not.
Another issue for us was Google's donating a digital copy of each
book to the participating library, thus displacing a possible
sale (and thereby violating the fourth factor of fair use).
Whether Google will prevail in court or not depends greatly on
whether the Second Circuit buys its argument that the use of its
search mechanism is "transformative" (under the first factor).
The Ninth Circuit has bought into this new and radical notion of
a functional type of "transformative use." The Second Circuit so
far has not, and there is reason to believe, from recent cases,
that it is continuing its tradition of interpreting what is
"transformative" in a non-functional way. (This all goes back to
a theory of fair use, now a classic in the field, that Judge
Pierre Leval, who now serves on the Second Circuit Court of
Appeals, published in the Harvard Law Review in 1990.)
I'm betting Google will not prevail in the Second Circuit and
would have to go all the way to the Supreme Court to stand a
chance.
For anyone interested in a more detailed argument along these
lines, see my article "What Is Educational Fair Use?" in the
April issue of Against the Grain, which I wrote as a reply to an
ARL white paper by Jonathan Band on this subject.