Google’s concession has made it more difficult for anyone to invoke fair use for book searches. The settlement itself is proof that a company can pay licensing fees and still turn a profit. So now no one can convincingly argue that scanning a book requires no license. If Microsoft starts its own book search service and claims fair use, the courts will say, "Hey, Google manages to pay for this sort of thing. What makes you so special?"
By settling the case, Google has made it much more difficult for others to compete with its Book Search service. Of course, Google was already in a dominant position because few companies have the resources to scan all those millions of books. But even fewer have the additional funds needed to pay fees to all those copyright owners. The licenses are essentially a barrier to entry, and it’s possible that only Google will be able to surmount that barrier.
Sure, Google now has to share its profits with publishers. But when a company has no competitors, there are plenty of profits to share.
As a small publisher, it took us about 1 minute to decide to participate in the Google book search program. Just as it took us about 1 minute to decide to make our books searchable on Amazon.
Wow – how far we have fallen… An innovative company wants to risk introducing an expensive new innovation (that will help people worldwide) nobody else will pay for, and it’s already an evil monopoly?!
Somebody’s been swigging Sarkozy’s kool-aid.
So.. should we expect Google to wait for competitors to emerge before innovating something?
PS: Yes, I want a pony as part of the deal.
“The fact that others paid for a similar use” is evidence of a market for licensing, which goes to the fourth fair use factor. American Geographical Union v. Texaco Inc., 60 F.3d 913 (2d Cir. 1994).
it is likely to genuinely try to maximize profits
Yeah, and surely nothing good can come out of a comapny striving to maximize profits. Maybe we need to nationalize Google in order to stimulate competition.
Suppose it came out that google’s servers were powered by puppy tears. It’s not the only search engine in the world, and switching search engines is exceedingly easy.
They say “don’t be evil” because if they were sufficiently evil they would eventually be discovered and suffer for it.
The writer of the WaPo article confuses fixed costs with sunk costs. That no would-be competitor may be able to broadly invoke the fair use doctrine is not a barrier to entry because all would bear the same cost.
The writer of the WaPo article confuses fixed costs with sunk costs. That no would-be competitor may be able to broadly invoke the fair use doctrine is not a barrier to entry because all would bear the same cost.
The writer of the WaPo article confuses fixed costs with sunk costs. That no would-be competitor may be able to broadly invoke the fair use doctrine is not a barrier to entry because all would bear the same cost.
Thanks, Vernunft.
I remember that case now (the scientists burning copies of their favorite journal articles). I always viewed the court’s analysis re: the fourth factor as bootstrapping (affected market value because didn’t pay royalties, thus is protected by CR), but I guess it is good law now.
(not a copyright lawyer).
Google always had a weak case on the “purpose and character of the work” front. They essentially had to claim that aggregating creative works on a sufficient scale was a transformative, creative work in its own right, a claim very different from how the law is usually understood. They really had no better case than mp3.com.
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