The recent debate over Google Print is really interesting. Here are the facts: there are three different scanning scenarios in Google Print (public domain books [copyright expired], copyrighted books submitted voluntarily by a publisher with permission to use, and copyrighted books not submitted but scanned via The Google Library Project). Thus, there are three different types of results you can get from Google Print: full book viewable, limited page access, and snippets only (which is allowed under the 'fair use' exception of copyright law).

The only potential problem I see is in the middle scenario. If you've ever used Google Print for a book in this middle category, you'll notice that the entire book is not viewable at first, but only a couple pages before and after a search result. According to Google's FAQ (item #6), this is the way it's supposed to work. There is, of course, a way around it - if you out-smart the system repeatedly to bring up subsequent pages (which is possible using a simple refined search), it'll let you the first few times, but then it'll require you to log in (with your Gmail account info) - presumably so they can track your movements. It does, however, let you continue on. For books scanned in as part of the Print Library Project, if a particular search term appears many times in a book, the search engine allows you to only view three instances of the term, thus preventing you from accessing too much of the book. No similar control seems to be in place over books submitted via the Print Publisher Program. That's the problem.

Thus, in theory, you can view (but not easily print) the entire text of some copyrighted books (at least for now until Google reads this blog entry). Of course, they're probably watching you, but it is possible and fairly easy to do, and even then possible to print off the entire book if you are determined to do so.

Herein lies what should be the crux of the copyright case against Google by the Authors Guild and the concerns of the Association of American Publishers (AAP): Google is allowing access to the entire copyrighted text of a book out on the web for free, contradictory to Google's own Print Publisher agreement. The Authors Guild is focusing on the wrong aspect - they're trying to build an argument based upon the Print Library Project, when they should be concentrating on the Print Publisher Program's logistics instead. It's not copyright fair use theory that should be under scrutiny here, but rather Google's implementation of the Print Beta's web interface and adhering to the Print Publisher Program's terms of service.

In my opinion, any lawsuits against the Print Library Project focused on the Fair Use doctrine are doomed to fail. As a primer, there are four (4) factors in the Fair Use privilege of the Copyright Act:

1) Commercial nature of the purpose and character of the use.

Is the usage being done exploitatively to make a commercial profit? Does the usage supplant the need for the originals? Are the results of the secondary usage used for the same, or for a different function or purpose, as the originals? Also important here is how "transformative" the new work is - the more it's been altered (i.e., the less it resembles the original), the better.

2) The creative nature of the copyrighted work.

Creative works are more covered under copyright law, whereas fact-based works are less so. Has the work already been published? Published works are less-protected (i.e., more subject to fair use) than non-published works, because the artist/authors have already expressed their ideas to the world and potentially already profited from it.

3) The portion of the work in ratio to the work as a whole.

Fair Use says you can copy a portion, but not the whole thing. This factor, however, depends on the intended usage. If the usage only makes sense if the entire work is copied, then that is allowed.

4) The effect of the usage on the value of the original.

Does the secondary usage undermine or supplant the market or value of the original? Can someone get the original work from you instead of going to the original copyright holder? Does the secondary project harm the ability of the original copyright holder to license or sell the original work?

Since Google Print doesn't negatively impact or tread upon any of these four fair use factors, I feel that Google is in the clear.