The Field case opinion gives "transformation" by Google as a reason for finding fair use (pages 14 and 15).
They cite the Supreme Court Campbell case. According to the Supreme Court in that case, as cited by this court, fair use analysis largely turns on the question:
"whether the new [use] merely "supersedes the objects" of the original creation... or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is transformative" ... Although such transformative use is not absolutely necessary for a finding of fair use, ... the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works."
"Transformative works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, ... and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use."
Since the Nevada court is clearly an extremist Google cheerleader with no interest in neutrally looking at the facts, we can expect it to find lots of fabulous "transformations" in Google's activities, even though Google obviously just engages in wholesale copying without adding any creative aspect whatsoever.
We are not disappointed in our expectation. The court comes up with the following points to recognize Google's Great Transformation.
One. The cache adds the possibility to access the content if the website is down.
That, obviously, does not change anything. The content in the cache is exactly the same as that in the website (Google is not, at this point, asserting the right to edit the content owned by other people). So how exactly is adding to the distribution channel further the promotion of the arts? You need to add to the content, not to the distribution.
Two. Having a cached copy gives users the power to check for changes. If the website owner edited his work, the user can still access an older version.
Any transformations found in this case (where the content of the original website changed after Google has crawled it) clearly is done by the website owner. Asserting this as proof of Google's Great Transformative power seems rather far-fetched. If this was true, the website owner could avoid that problem by refraining from editing his own website.
I don't think that ordering the website owner to do that "furthers promotion of the arts" in any way.
Three. Now comes the first real transformation offered by Google. They highlight the search terms, making it easier to find those terms on the cached page.
This is not much of a creative effort. The content is still unchanged, it is only slightly easier to navigate. And that added functionality is not added by a human author, like in the Campbell case, but automatically.
The Fields court seems to want to protect the creativity of the computer serving the search result page in question. I am not convinced that any such protection is called for.
Four. Google is adding a backlink and a disclaimer to the cached pages.
Again, that is not any creative effort worth protection, and this adds absolutely nothing to the work as such.
Five. The court then comes up with another fact irrelevant for this analysis: Website owners can disable Google caching, if they are ready to jump through the hoops Google has set up for this.
That might be. However, that fact does nothing to transform the work in any way.
To sum up, we have a big pile of nothing to base the weird "transformation" theory on.
The Google cache is a one-on-one, absolutely unchanged copy of the Web. Not a parody, like in the Campbell case. Highlighting a couple of search terms an independent creative effort does not make.
Posted by Karl-Friedrich Lenz at January 28, 2006 04:34 PM