I have commented again elsewhere on the latest Google lawsuit. This time at Ed Felten's Freedom to Tinker.
In the discussion there someone made the same mistake I made in yesterday's first post on this lawsuit, confusing "Google Print Publisher Program" and "Google Print Library Project".
However, now I think it is really not relevant how many lines are displayed to an individual user. We are talking about Google's use of the work here, not about that of individual Google costumers.
If Google serves all pages to the totality of costumers, they use all pages, even if the individual act of displaying a search result to an individual costumer only shows a couple of lines.
As Andreas Bovens noted in the discussion at Freedom to Tinker, Google says in the FAQ that they won't display some pages to any user:
"6. I'm already logged in. Why are you telling me the page is unavailable?As part of our efforts to protect a book's copyright, a set of pages in every in-copyright book will be unavailable to all users."
There is no explanation on what percentage the pages not displayed make up. But at best for Google, these are the only pages that Google is not using. So when calculating the "portion used" under § 107, everything except those pages is the relevant portion.
And that only if you insist that the original reproduction into the database and the fact that every individual user gets to search the whole text with his query are irrelevant.
I disagree with that idea, as discussed earlier here and here. The act of including a work in a search database is already reproduction of the whole work.
Posted by Karl-Friedrich Lenz at September 25, 2005 12:34 AM