Amazon Pages and Google Library’s Fair Use Defense

By Eric Goldman

I’m intrigued by Amazon’s and Random House’s introduction of a pay-per-book-page feature (Amazon is calling its feature “Amazon Pages”). From a legal standpoint, I wonder: will this announcement have any effect on Google’s fair use arguments for its Google Library project? (My previous comments on Google Library, and Mark McKenna’s).

A key fair use factor is the “effect of the use upon the potential market for or value of the copyrighted work.” A pay-per-page market makes the unit of commercial value much smaller (down to a page instead of an entire book) and thus closer in size to the snippets displayed by Google. Google’s snippets may not hurt the market for the book as a whole, and may help it. However, I could see an increasingly plausible argument that the snippets are a good substitute, and thus will hurt the market, for individual book pages–a commercial market that is no longer hypothetical but rather a market actively being exploited by some publishers.

If Google Library has a potential detrimental effect on the market for book pages, then Google’s fair use defense has taken a major step backwards. Indeed, the timing makes me a little suspicious. Was this announcement made deliberately to undercut Google’s legal position?

My suspicion is only partially allayed by the NYT report that Google is planning a similar pay-per-page program. I’m not sure what to make of this, except that I don’t see how Google could launch a commercial program to sell access to individual pages (and generate revenue for Google accordingly) while simultaneously insisting that an opt-out approach is fair use. Those positions seem legally inconsistent to me.

Regardless of whether Google’s legal position has been undermined, I think Google should abandon its standalone project and should merge it into the Open Content Alliance. Doing so would avoid any risk of wasteful duplication of scanning/indexing resources, and it would mean that the complete scanned book database will become more universally available. Google has really dug in its heels about Google Library for reasons not entirely clear to me, but the OCA offers a graceful way for it to accomplish its goals while avoiding unnecessarily messy and distracting legal disputes.