Why I hope Google loses

By Mark McKenna

The blogosphere is abuzz with discussion of the Authors Guild’s lawsuit against Google. See here, here, and here, in addition to Eric’s post here. UPDATE: this post collects the reaction of a number of commentators.

I don’t have that much to add to the doctrinal discussion – I think there’s a reasonable fair use defense here, though I think I’m less certain than Larry Lessig is that it would prevail. I think Larry’s probably suggesting that it should be fair use more than arguing that it is, and on that score I think he has a lot of allies. But several people, including Eric, have been very skeptical that the fair use defense would work here.

The more interesting aspect of the discussion, I think, is the observation that a loss by Google has much more significant implications than just those for Google Print, since the basic concept is indistinguishable from what search engines do. I think that’s right, and that’s why I hope Google loses.

Let me be clear – I think Google Print could be a tremendously valuable resource and that copyright owners are foolish to challenge this product, which will make huge numbers of otherwise obscure books available to general audiences. And I think that it’s crazy that copyright law would get in the way of this type of venture. But I think it would take a threat to something like Google’s core search engine business – which is widely seen as legitimate and hugely valuable – for Congress to create any meaningful restrictions on the scope of copyright protection. And that’s ultimately what we need – not some disingenuous attempt by a court to distinguish Google Print from search engines in order to avoid a disastrous result.

Maybe I’ll regret having said this in 10 years of Congress doesn’t do its job, but in the meantime, I’m rooting for the Authors Guild. Call me crazy.

UPDATE: One of the comments below suggested that Congress was too much in the pocket of the content industry and would force search engines and the like to adopt some type of filtering mechanism if there was a statutory response. I’m skeptical of that, partially because I think there’s a constituency supporting Google, but also because I don’t think it’s that easy to differentiate the search engines from the content providers anymore. Case in point: I understand that Yahoo! is among the big proponents of the US signing onto a broadcasting/webcasting right that has been operational in Europe for a while. So Yahoo! would have to decide which part of its business it would spite on any legislation related to filtering.

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