Jon Hart, Member of Dow Lohnes PLLC pondered how the 18th century notion of copyright can be reconciled with 19th notions of fair use in the 21st century, even as courts wrestle with the limits of fair use in an online era. Tom Kirby, Partner, Wiley, Rein & Fielding: some materials are easier to define within fair use policies than others -especially books, where there are long precedents. The "how much" is still an issue, but if you're breaking new ground, it's likely to be tolerated. Tom sees these as non-exclusive factors. But a lot of "old world" issues are still at the core of fair use: Tom highlighed The Nation magazine's quoting of former President Ford in an article by excerpting the new book on Ford, which bounced back and forth on fair use rights until the U.S. Supreme Court ruled against fair use rights 6-3. The court saw copyright as important but in fact protecting the use of content as much as restricting it. The content itself was a factor: it was mostly facts, but not published before, so SCOTUS felt that fair use was not being very fair [COMMENT: Oops, that may play against weblogs in many instances.] But the killer is that there were pre-release contract restrictions whose terms were violated, so fair use was the loser in this instance.

Fast forward to Google Library. David Olson, Resident Fellow of the Center for Internet and Society. asked what copyright is meant to do today. "Fundamentally it's a story of market failure," David noted, recognizing that the framers of the U.S. Constitution wanted to ensure that ideas would benefit their originators. But today's copyright no longer solves market failures that were extant in the 18th century - instead, the original 14-year limit on copyright has been extended to "the life of the author plus seventy years" (thank you, Disney, who wanted to protect Mickey Mouse from wandering from the Magic Kingdom). But there are other market failures: using excerpts from copyrighted materials in critical reviews may stifle public debate, for example. David noted that services like Copyright Clearance Center help people to do the right thing with copyright, hopefully mitigating some of these issues.

Google Library is another kettle of fish. The legality of Google's book scanning is wrapped up in copyright law, but it's a difficult package. Historically copying was difficult, now it's virtually costless. Google's solution is to provide snippets that seem, in their minds, to satisfy fair use laws. But less than 20 percent of the books Google is digitizing are in copyright and in print. Lots are in copyright and out of print, so the logical benefit is that all of a sudden long tail content in the dark comes to light. What's wrong with the snippet in this instance? The issue from the book publisher's perspective is not the snippet but the actual scanning of a copyrighted work. Where is the harm in this, is one perspective, but Tom takes a different tack on the issue. Tom points out that copying an entire work is a fair use "no-no," especially as Google will probably figure a way to make money off of it. [Comment: good point, I think that this is pretty solid legal ground, given precedents with photocopying. But until the publishers decide how they want to make money off of this, how can Google move forward? Isn't part of the problem that the publishers don't want to bargain in good faith for the use of their content? Would be interesting to look at precedents from this angle]. Tom also pointed out AFX News' suit against Google's crawling of their content, which goes to the point of search engines making digital copies of electronic content.

Dave points out that it tends to be people who have expensive lawyers will be able to quote safely. [Comment: what a bummer for market growth. Get with the program, AFX, look that the problems that Time had with their dark content until it got exposed. This type of copying is a given in today's market - there's no transformation from a non-electronic format in question]. If Google settles, Dave thinks that we may be worse off, since libraries will lose the motivation to build such and index - and then publishers will lose the ability to monetize that content effectively. My question: isn't this just a big delaying motion in a sense because book publishers have no clue as to how to monetize digitized out-of-print book content?

How to move forward? David brings it back to addressing market failures. Under 10 percent of library holdings are books in print, so libraries will be interested in monetizing the content even if publishers aren't. Now that it's established that copying is free, we need something more. [Comment: what we need is context rights encoded into law at some level, so that we don't have to codify context rights through arcane licensing agreements.] Tom reminds people not to get indignant when they send a copy to their mom. [But when mom has a weblog, what do you do?]

Good discussion, it all comes down to what book publishers want to establish as the "going rate" for digitizing a book legally. We'll see what happens...