Sunday, September 25, 2005

The Patry Copyright Blog: Google Revisited

William Patry revises his stance with regard to the Google Library project, indicating that he views the project as providing a helpful service to researchers and the authors and publishers. In no way, as the project is conceived does it harm the authors and publishers. More intriguing is his attack on the way the Fair Use Doctrine is defined:
The Patry Copyright Blog: Google Revisited: "I have increasingly come to find the traditional four factor fair use analysis not only unhelpful, but harmful to looking at uses that may promote the progress of science and not injure copyright owners' interests. We would have been much better off had the 1976 Act simply said in Section 107 'Notwithstanding the provisions of Section 106, the fair use of a copyrighted work is not an infringement.' Putting four factors in the statute has made courts and the rest of us think that Section 107 either 'codifies' fair use (it doesn't), define fair use (no again), or somehow provide a way in a real case to assist in determining the outcome, and here I would say the statute does the most harm: the temptation is almost overwhelming to run through the factors, cite previous decisions about how and what the factor entails, is to be weighed etc. and then to tally up who was naughty and who was nice and to what degree. That's an artificial approach and maybe intellectually dishonest in some cases if we reach a conclusion first and then fill in the 'reasoning' afterwards. That's what I did in my Thursday posting."
I'm hoping a court ruling will bring clarity to copyright law in a digital environment. I hadn't thought about the possibility of a redefinition of Fair Use...