So Obama gave this speech in Berlin… here’s exactly what I thought when reading through it… you won’t get a clearer picture in to my mind than this folks…

I come to Berlin as so many of my countrymen have come before. Tonight, I speak to you not as a candidate for President, but as a citizen – a proud citizen of the United States, and a fellow citizen of the world.

YO, Germans! Don’t worry, I’m not a hard-core American Exceptionalist… we’re cooo… and I totally would have made this speech even if I weren’t a candidate for president… nobody would have came to hear me… but I totally would have done it… my candidacy had absolutely NOTHING to do with it. Just a normal citizen… making a speech… right up.

I know that I don’t look like the Americans who’ve previously spoken in this great city. The journey that led me here is improbable. My mother was born in the heartland of America, but my father grew up herding goats in Kenya. His father – my grandfather – was a cook, a domestic servant to the British.

By the way, I’m black (didn’t know if you knew that, so I thought I’d mention it)… and I’ve got European blood in my family… sort of… fyi.

At the height of the Cold War, my father decided, like so many others in the forgotten corners of the world, that his yearning – his dream – required the freedom and opportunity promised by the West. And so he wrote letter after letter to universities all across America until somebody, somewhere answered his prayer for a better life.

That is why I’m here.

Well, actually, I’m kind of hear for campaign purposes… to prove I’m no newbie on foreign policy…

And you are here because you too know that yearning.

Or maybe because the 2 most popular German Bands gave free shows… but I’ll just assume you would have came anyway… I AM Barack Obama, after all. I’m a rock Staaarrr!

This city, of all cities, knows the dream of freedom. And you know that the only reason we stand here tonight is because men and women from both of our nations came together to work, and struggle, and sacrifice for that better life.

I’m not too kean on Americans and Iraqi’s struggling to accomplish the same dream though… It’s just so not-cool anymore.

Ours is a partnership that truly began sixty years ago this summer, on the day when the first American plane touched down at Templehof…

This is where the two sides met. And on the twenty-fourth of June, 1948, the Communists chose to blockade the western part of the city…

The size of our forces was no match for the much larger Soviet Army. And yet retreat would have allowed Communism to march across Europe. Where the last war had ended, another World War could have easily begun. All that stood in the way was Berlin.

All this talk though about radical Islam taking over the Middle East and Europe…. OVERRATED.

**editors note** Obama, you IDOT… you don’t see the same threat Radical Islam posed and the incredible DANGER posed by retreating from Iraq??? How on earth can you use this analogy without grave self-reflection on YOUR Iraq policy positions–policies which would have left Iraq and the Middle East in the very thralls of it’s OWN civil war???? You think retreat from Berlin would have been a disaster but from Iraq would have been the RIGHT THING???? You’re KIDDING me, right!???

And that’s when the airlift began – when the largest and most unlikely rescue in history brought food and hope to the people of this city.

The odds were stacked against success. In the winter, a heavy fog filled the sky above, and many planes were forced to turn back without dropping off the needed supplies…

But in the darkest hours, the people of Berlin kept the flame of hope burning.

It wasn’t the 300 tons of food and supplies flown into the country EVERY DAY by British and American servicemen that kept the flame of hope burning… no, it was the people of Berlin–flaming that flame of hope with their own scrap wood they burned to stay warm….

The people of Berlin refused to give up. And on one fall day, hundreds of thousands of Berliners came here, to the Tiergarten, and heard the city’s mayor implore the world not to give up on freedom. “There is only one possibility,” he said. “For us to stand together united until this battle is won… The people of Berlin have spoken.

Pope John Paul the Second? President Regan’s economic and military buildup plan and his “tear down this wall” speech? Pleeeassee… those people were barely involved with the fall of the Berlin wall! ANY historian will tell you it was the people and Mayor of Berlin that caused the wall to fall.

We have done our duty, and we will keep on doing our duty. People of the world: now do your duty…People of the world, look at Berlin

Don’t look at Iraq though… or America for OUR role in “keeping the flame of hope burning”…whatever you do… DON’T LOOK. Because when all is said and done… America just is far more flawed than Germany on these important issues of human freedom…

Look at Berlin, where Germans and Americans learned to work together and trust each other less than three years after facing each other on the field of battle.

Look at Berlin, where the determination of a people met the generosity of the Marshall Plan and created a German miracle; where a victory over tyranny gave rise to NATO, the greatest alliance ever formed to defend our common security.

Look at Berlin, where the bullet holes in the buildings and the somber stones and pillars near the Brandenburg Gate insist that we never forget our common humanity.

(*thinks to himself*) Except if that Humanity is Arabic…

People of the world – look at Berlin, where a wall came down, a continent came together, and history proved that there is no challenge too great for a world that stands as one.

Sixty years after the airlift, we are called upon again. History has led us to a new crossroad, with new promise and new peril. When you, the German people, tore down that wall – a wall that divided East and West; freedom and tyranny; fear and hope – walls came tumbling down around the world. From Kiev to Cape Town, prison camps were closed, and the doors of democracy were opened.

**editors note*** YOU THINK??? and who has been responsible for all this freedom and market stuff??? MAYBE IRAQ MIGHT BE one example of this????

Markets opened too, and the spread of information and technology reduced barriers to opportunity and prosperity. While the 20th century taught us that we share a common destiny, the 21st has revealed a world more intertwined than at any time in human history.

The fall of the Berlin Wall brought new hope. But that very closeness has given rise to new dangers – dangers that cannot be contained within the borders of a country or by the distance of an ocean.

The terrorists of September 11th plotted in Hamburg and trained in Kandahar and Karachi before killing thousands from all over the globe on American soil.

As we speak, cars in Boston and factories in Beijing are melting the ice caps in the Arctic, shrinking coastlines in the Atlantic, and bringing drought to farms from Kansas to Kenya.

**editors note** REALLY! cars in boston are causing droughts in Kansas… huh, Obama must have taken more science classes than I!

Poorly secured nuclear material in the former Soviet Union, or secrets from a scientist in Pakistan could help build a bomb that detonates in Paris. The poppies in Afghanistan become the heroin in Berlin. The poverty and violence in Somalia breeds the terror of tomorrow. The genocide in Darfur shames the conscience of us all.

What? Did you say the genocide against the Kurds in Northen Iraq after the first Gulf War… ooo, that wasn’t GENOCIDE, that was just… ooo… a military operation… or something…

In this new world, such dangerous currents have swept along faster than our efforts to contain them. That is why we cannot afford to be divided. No one nation, no matter how large or powerful, can defeat such challenges alone. None of us can deny these threats, or escape responsibility in meeting them. Yet, in the absence of Soviet tanks and a terrible wall, it has become easy to forget this truth. And if we’re honest with each other, we know that sometimes, on both sides of the Atlantic, we have drifted apart, and forgotten our shared destiny.

In Europe, the view that America is part of what has gone wrong in our world, rather than a force to help make it right, has become all too common. In America, there are voices that deride and deny the importance of Europe’s role in our security and our future. Both views miss the truth – that Europeans today are bearing new burdens and taking more responsibility in critical parts of the world; and that just as American bases built in the last century still help to defend the security of this continent, so does our country still sacrifice greatly for freedom around the globe.

**Editor’s Note** try supporting it when we DO make these sacrifices around the globe… put your money where your mouth is.

Yes, there have been differences between America and Europe. No doubt, there will be differences in the future. But the burdens of global citizenship continue to bind us together. A change of leadership in Washington will not lift this burden. In this new century, Americans and Europeans alike will be required to do more – not less. Partnership and cooperation among nations is not a choice; it is the one way, the only way, to protect our common security and advance our common humanity.

** where’s the nuance here? it’s your way or the highway??? you’re kidding me?!

That is why the greatest danger of all is to allow new walls to divide us from one another.

**no… the greatest danger is if YOU ruin the credibility and undermine the power of the ONE thing keeping our common “humanity” safe… the US military.

This is the moment when we must renew our resolve to rout the terrorists who threaten our security in Afghanistan, and the traffickers who sell drugs on your streets. No one welcomes war. I recognize the enormous difficulties in Afghanistan. But my country and yours have a stake in seeing that NATO’s first mission beyond Europe’s borders is a success. For the people of Afghanistan, and for our shared security, the work must be done. America cannot do this alone. The Afghan people need our troops and your troops; our support and your support to defeat the Taliban and al Qaeda, to develop their economy, and to help them rebuild their nation. We have too much at stake to turn back now.

But we can totally turn back from Iraq… I know we’ve invested more like… American DOLLARS into it… but I’m really talking about a political and personal stake my party and I have in Afghanistan.

This is the moment when we must renew the goal of a world without nuclear weapons

Ya, nuclear weapons brought about the end of WWII… and helped end the Cold war (which I just praised both our countries for winning)… but I can’t POSSIBLY imagine how we will ever need a trump card like THAT again…

This is the moment when we must build on the wealth that open markets have created, and share its benefits more equitably.

In other words, i like and want to control the wealth of free markets for my own political advantage…

This is the moment we must help answer the call for a new dawn in the Middle East.

I know my entire primary campaign was based on ignoring the call… but that’s just politics..

I know my country has not perfected itself. At times, we’ve struggled to keep the promise of liberty and equality for all of our people. We’ve made our share of mistakes, and there are times when our actions around the world have not lived up to our best intentions.

Sure, equality isn’t really an American virtue… it’s really more a socialist virtue… but I think it SHOULD BE an American virtue..

People of Berlin – and people of the world – the scale of our challenge is great. The road ahead will be long. But I come before you to say that we are heirs to a struggle for freedom. We are a people of improbable hope. Let us build on our common history, and seize our common destiny, and once again engage in that noble struggle to bring justice and peace to our world.

WOW… I mean.. this guy… just has NO fundamental beliefs… He’s been against the Iraq War for years, but somehow ended up validating the war in this speech without even knowing it. There’s just nothing turned on upstairs!

Allow me to begin this discussion by first complimenting Ms. Wolf. First, she just looked great during that interview. I was all about that red thing she was wearing (but I digress!). In all seriousness, I think this book is a valuable addition to the discussion and brings an important (albeit selective) historical context to modern politics. At the risk of cliche, I would remind you that those who are ignorant of history are doomed to repeat it. By reminding us of the evils of history Ms Wolf is, shockingly enough, being helpful… and I wish to encourage this kind of behavior.

This being said, I think it is fair to say that Ms Wolf’s conclusions are lacking… in any number of ways. It isn’t that she is always wrong, but that her foundational history is in many cases only loosely connected with modern practice. She begins with an assumption of guilt (primarily with the Bush administration… many times implying he is a ‘wannabe’ despot), finds similar parallels to dictators with completely different motivations and purposes, and then imputes those motives to Bush because factual circumstances were the same. Although a stretch, in some cases I found myself thinking that if two people washed their laundry, that would be enough for her to draw a comparison. I am, of course, exaggerating; but I do so to point out that to end one’s analysis at factual similarities without further analysis can lead to very irrational conclusions.

I wish to address some of these loose associations and provide a greater historical context for many of the points she makes. First, let us examine this list of steps:

1. Invoke a terrifying internal and external enemy
2. Create a prison system outside the rule of law
3. Develop an unregulated paramilitary
4. Set up an internal surveillance system
5. Harass citizens’ groups
6. Engage in arbitrary detention and release
7. Target key individuals
8. Control the press
9. “Dissent = Treason”
10. Suspend the Rule of Law

As an initial matter, this is a great list. Nazi Germany during World War II is easily implicated in all of these steps… as was the Soviet Union (and even modern-day Russia). Naomi references a few more examples I am not quite as familiar with… but I wouldn’t doubt her history is accurate.

She discusses in great length in the youtube clip the first 4 elements, beginning with the first–where a would-be despot invokes a terrifying threat. This first argument immediately raises the problems I have already mentioned. The fact that any ruler/despot/president invokes a threat does not itself, without any other context, mean that that particular country is on the verge of loosing freedoms. In fact, it would seem to me that leaders ignorant or unwilling to acknowledge such threats would be equally at risk for loosing the very freedoms they supposedly champion by non-invocation. Would anyone claim that Churchill or Roosevelt was a would-be-despot by calling a spade (i.e. Nazi Germany) a spade? In fact, Neville Chamberlin’s refusal to invoke Germany as the threat it was… is what caused the German threat to be even stronger then it would otherwise have been–almost resulting in Britain’s defeat. This “judging solely on the facts” causes Naomi to conclude that Bush is a despot when such facts can go both ways.

For example, when Bush invokes radical islamists or the threat of a nuclear Iran, he is warning the free world about very real threats… not some made-up boogyman. Radical islamists REALLY attacked us on 9/11 and crippled the United States economy for a couple of years. They had similar plans to blow up the freedom tower in Los Angeles and have been attacking US troops in Iraq for the past 5 years. We can ignore these threats… avoid dealing with them, or we can address them in public, in the arena of political debate (which is what the Bush administration has done)–or worse: adopt a covert policy of assassination and secret deals). Any leader (i.e. Obama) who does not take these real dangers seriously risks the very freedoms supposedly at stake when their danger is “invoked”. While I understand her concern… I believe that her concern over the Bush administration’s “invoking problem” is misplaced.

Secondly, she discusses the existence of a prison system “outside the rule of law”. Obviously, Guantanamo is the example of this kind of system that can be so dangerous. Furthermore, in many occasions, she references the founding fathers and how this very deprival of due process is exactly what the founding fathers meant to avoid with the bill of rights. This is all well and good-no doubt my readers have read the 5th amendment – but this statement is an incomplete analysis of the bill of rights AND the desires of the founding fathers.

As an initial matter, George Washington used military tribunals in the Revolutionary War. “How can this be!”, you ask? Well, that’s exactly the point; in fact, military tribunals have been used in almost every military conflict the United States has ever engaged in. To say that this was somehow against the wishes of the founding fathers is… well… factually unsound. Additionally, it is not entirely proper to say that war prisoners have no due process rights. While they do not have the same rights of process we enjoy as non-combatants, they do have process… it is just a different process tailored to the needs of the military. In fact, even U.S. military personnel do not have “due process” under the common sense of the term… they are subject to military courts’ jurisdiction under the UCMJ. Now, it is one thing to argue why military combatants should enjoy the same rights as you and I… it is an entirely different thing to say that they have no due process rights… or that they should have MORE than even US military personnel.

Now, this isn’t to say that there is not some danger should these tribunals… and that they could be used for ill purposes. I agree with her in the sense that these must subject to strict scrutiny should they overstep their bounds. However, to view Bush’s military tribunals as some sign of impending catastrophe–tribunals that have been subject to congressional oversight and supreme court review–is simply irrational given our country’s history. For crying out loud, we interned 110,000 Japanese Americans during WWII! Get a sense of perspective! Freedom’s scope fluctuates with the circumstances… and America has always emerges from troubled times with their sense of freedom intact–often expanding it when it no longer feels threatened. To end one’s analysis at “we match a bullet on a checklist” without examining how America reacts and self-corrects it’s own arguably authoritarian policies of history is to create a sense of irrational fear.

During the discussion of due process rights I believe she went a little off track discussing the suppression of free speech. Don’t take me wrong, I’m as big an advocate of free political speech as anybody… Although I can’t recall ever writing as much on this blog, I find the McCain-Feingold legislation an untenable impingement on freedom of speech–precisely because it desires to stifle political speech. I share her concern; but if the best example she can cite is the “don’t taze me bro!” guy… then it is safe to say we have nothing to fear (wasn’t he speaking at a Kerry rally?). In fact, I would argue that the modern media has never been so open and critical as it is today. In fact, papers such as the New York Times and the Washington Post have leaked national security secrets–in violation of the espionage acts…(i.e. they broke the law)–without as much as a finger lifted by the justice department. That’s right; even “free speech” that is illegal (not all free speech is “free”, after all)… is still allowed by a president she so fears. (One wonders if she uses this fact to criticize the president for undermining the “rule of law”. Snap!)

Next, she discusses Backwater and the implications of a para-military force. Allow me to loosely quote some excerpts from the interview…

Tomorrow we could wake up and see backwater guarding the state house… backwater menacing congress-people. there is nothing we can do to prevent this… The founders knew how intimidating it is… to have a standing army that is not accountable to the people… That’s why we have the second amendment that says you can’t have a standing army that’s not accountable to the people. We could find ourselves waking up looking at mercenary forces outside our door… we could wake up and find out our kids stuff has been gone through by agents of the state.

I must say, I tend to agree with her as a general matter. I’m not sure what Blackwater does that cannot also be accomplished by U.S. military personnel. Their existence and employment is probably a point of valid concern. If there are indeed powers given the president to use para-military forces in the united states, it should certainly be something to debate within a free society. However, in examining her point, I found, yet again, a lack of desperately-needed context. For example, the bill of rights, particularly the 4th amendment, does not guarantee our houses will never be searched. It is ONLY a right (with an associated remedy), NOT a guarantee of state inaction. Rights exist so that there is something to claim should they be violated. We are at just as much risk of a local law enforcement agency, the FBI, or any other government agent violating our privacy rights than a para-military force… but yet Ms Wolf isn’t concerned at all about the threat a misinformed police officer poses–even though such action is a much more direct, immediate likelihood (I use likelihood in the loosest sense of the term). When the state (or an agent thereof) acts contrary to the constitution, we can challenge this in court and win! A para-military force is not alone a danger… it is only when such force cannot be challenged in court that such a force becomes a danger.

Perhaps I’ve been too harsh… I cannot emphasize enough the fact that I enjoyed listening to the interview and thought she had some excellent points… but when my analytical mind gets going… sometimes it goes overboard. Let me know what YOU think.

It’s been a while since I posted on any LEGAL matter, and I must say it’s good to finally get around to the legal posts again.  Anyway, I’m not vouching for the LEGAL correctness of any of this… but I though I’d post the text of my final Copyright Exam just in case you were interested in Copyright as a general matter.  The exam was intended to be the analysis portion of a legal opinion discussing Google’s “book search” and the Copyright issues raised with Google’s scanning and indexing activities.

Let me know what you think?  I’d be interested to hear from law students and novices alike.  (Do I deserve and A?  

Update:  It turns out I DID get an ‘A’.   niiice. 

OVERVIEW

Google, an online search giant, is undertaking a project to catalogue and digitally index the contents of books in libraries across the country. To accomplish this project, each book added to the Google database must be scanned and the text converted into a digital format. Google then stores a graphical copy of the book as well as an indexed database of all words and phrases that is then searchable by the end user. For works in the public domain, Google allows users to access the work in its entirety. In the case of Copyrighted material, Google selects individual pages to be displayed in order for the user to preview the book before having the option to purchase or obtain the book by alternate means.

As a result of these activities, Publishers have sued Google for “massive” copyright infringement. They claim that the act of copying and indexing a Copyrighted work is itself an infringing activity and further assert that the opt-out policy is evidence of indifference to the rights of authors and publishers. Google asserts that the opt-out program removes them from Copyright liability and even if not, they are protected by the “fair use” doctrine.

FINDING OF LAW Before the Court is a motion for Summary Judgment on the issue of Google’s copyright infringement of thousands of literary works. In order to successfully pass Summary Judgment on a claim of Copyright infringement, a plaintiff must a) own a valid copyright and b) Defendant must have violated one of his §106 exclusive rights. The Court first analyses the “ownership” requirement.

§102 of the Copyright act provides protection to “original works of authorship… fixed in any tangible medium… from which they can be perceived… either directly or with the aid of a machine or device“. “Original” in this context requires a de-minimus level of creativity (Feist, p. 75). According to Feist, “Original[ity], as the term is used in copyright, means only that the work was independently created by the author… and that it possesses at least some minimal degree of creativity.” (p. 75). If a work meets the fixation and creative requirements, it immediatly becomes a work protected by state common-law copyright. In order for there to be federal copyright, an author must register their work with the U.S. Copyright Office.

What kinds of creative work does Copyright protect? §102 protects literary, musical, dramatic, pictoral, and graphic works (among others). Of relevance to the question before the court is the Act’s protection for literary works. Under §101, “literary works” are defined as works “expressed in words, numbers… symbols… regardless of the nature of the material objects such as books…disks… in which they are embodied.” It is assumed for purposes of this opinion the Plaintiff’s do represent a large number of valid federal copyrights. To verify the validity of each would be burdensome for both the parties and the court. Given this assumption, the Court addresses the second prong of an infringement suit: the violation of 106 rights.
Per §106, Copyright owners have the exclusive rights to do and authorize any of the following:

1. to reproduce the Copyrighted work in copies
2. prepare derivative works based upon the Copyrighted work
3. to distribute copies to the public by sale, rental, lease or lending
4. to perform the work publicly
5. to display the Copyrighted work publicly

In order for there to be infringement, there must be a violation of one of the above rights. The Court finds Google is infringing at least one of the exclusive rights in §106. First, by scanning the book and creating a digital copy of the book, Google is reproducing copies of the work works under sub (1). “Copies”, under §101, are “material objects…in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” The material object from which the work can be perceived is from the computers on Google’s servers. Just as in Phillips v. Kidsoft where defendant’s unauthorized scanning of pages from a children’s magazine onto a computer storage device constituted the making of a copy, so here the Court finds that Google’s scanning of books in their entirety also constitutes a copy (p 508).

Google is also violating the exclusive right to “display” the work publicly. To display a work publicly is “to transmit or otherwise communicate a performance or display of the work to [a place open to the public]… by means of any device or process” (§101). We assume that at least a small percentage of users are in public areas — either at a library, a cafe over their wireless network, etc. It follows then that Google is in fact contributing to the public “display” of copyrighted work per §106.

Finally, it appears as though the process of creating a searchable database amounts to the creation of a “derivative work”. A derivative work per §101 is “a work based upon one or more preexisting works… consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship.” A searchable database requires a series of revisions, annotations, and “other modifications” in order to work. For this reason, the Court finds an infringement.

Google argues (a general assumption based on the facts) that an “opt-out” policy serves as either a “waiver” or as implicit authorization to scan and catalog the books in question. In other words, Google argues that it can acquire Copyright interests by simply asserting them. This Court finds that Google cannot claim a Copyright interest under this theory. As with any piece of personal property, ownership cannot simply be asserted to vest unless the owner “opts-out”.  §201 specifically addresses how one may obtain ownership rights. In part, it states that “The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law… Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106 [17 USC 106], may be transferred as provided by clause (1) and owned separately.” Furthermore, §204 specifically outlines the means by which ownership interests can be transferred. “A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.” Unless Google can assert a pre-existing copyright interest, it cannot acquire one through acquiescence or waiver. Therefore, Google’s “opt-out” policy is not compatible with Copyright law.

Given these facts, the Court’s inquiry now turns to the doctrine of fair use and whether Google’s activities constituted a fair use per §107.

FAIR USE

Google maintains that even if it’s activities are found to be infringing, its activities are protected by the §107 “fair use” doctrine. The legislative intent of §107 was to codify the existing common-law doctrine of fair use and is to be read and applied in light of the purposes of Copyright law (p. 719-20). The language is “illustrative and not limitative” and should be flexible enough to apply on a case-by-case basis. (p. 718) Pursuant to §107 of the Copyright Act, the following four factors must be considered, but not one factor should be considered to be controlling.

• the purpose and character of the use, including whether such use is of a commercial nature ore is for nonprofit educational purposes;
• the nature of the Copyrighted work;
• the amount and substantiality of the portion used in relation to the Copyrighted work as a whole; and
• the effect of the use upon the potential market for or value of the Copyrighted work.

In applying the first factor, the Court should look at the nature of the infringing activity–including it’s transformative qualities, its message, and its use in light of Copyright’s purpose–the promotion of science and the useful arts (p. 4). According to the record, Google’s purpose is to provide its consumers relevant results to search queries. By converting the text of a page into a digital database, Google makes it possible for users to accomplish in seconds what would otherwise take years. It has exponentially increased the book’s usability — and to a greater extent the useability of a library’s search system — by giving users the most relevant results to text queries on demand. The re-organization of the words and sentences into a database is indeed transformative. The new format makes possible the search system and changes the original to such an extent that the Court would classify the database as a “new species” of work. This finding tends to weigh in favor of fair use.

However, in approaching the first factor, this Court must also consider the financial incentive driving Google’s activities. In Roy Export Co. Establishment v. Columbia Broadcasting System, the Court explained that, “The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.”

(emphasis added p. 753). In the case at bar, it is clear that Google is a profit-oriented business and stands to make a fair amount of profit from the sale of adds and other services associated with this book including referrals or any other “commission” arrangements it may have with its preferred sellers. However, the question of what the “customary price” is for scanning, indexing, organization, etc. is not clear from the record. The Court simply notes that Google has been indexing the Copyrightable contents of websites, images, and other online media, without charge, for almost a decade. This fact does not necessarily weigh in favor of Google’s fair use, but it is germane to the issue of the customary price.

Finally, under the first factor, the degree of exploitation by the infringing party also weighs on the ultimate finding on the fair use issue. In Kelly v. Arriba Soft Corporation, the Court found that the use of low-resolution copies of digital images was a “fair use” in part because the financial gain from the use of such images was only incidental, and therefore not “highly exploitative”. (p. 818). However, other courts have come to different conclusions. In the case of Perfect 10, the Court found that Google’s Ad-sense advertising system amounted to a use “far more commercial than Arriba’s use in Kelly” (p. 822). Although Google does indeed make money off of advertising, this Court does not find the Perfect 10 reasoning particularly convincing. If this Court were to use the Perfect 10 analysis, the affect would be to categorically disadvantage an entire segment of internet websites simply because their revenue model is based around adds instead of goods or services. This revenue source has no direct relationship to any particular book or scan; it is a byproduct of user interaction with their website, and therefore bears only an incidental relationship to the function of the web service. Given these conclusions, we find the transformative nature of Google’s activities clearly weigh in favor of Google’s fair use defense.

The Court’s next inquiry is into the nature of the Copyrighted work(s). At issue are millions of books from the collections of libraries and universities across the country–all of which are subject to a wide array of unique copyright restrictions. This factor’s relevance is limited in that it weighs against the argument made earlier for treating books the same as webpages. In the web context, Google is indexing the contents of information a) already in a digital format and b) freely given away. The same cannot be said for content in the print medium–very little of which is freely distributed–including a vast majority of the books in question. This weighs against Google’s position, but is not itself binding.

The third factor in the fair use analysis is “[whether] the amount and substantiality of the portion used in relation to the Copyright work as a whole are reasonable in relation to the purpose of copying“. Google argues that it provides only small snippets of the work to users to provide the context for their search query. This is slightly misleading because although Google may not share in any contributory liability for the acts of end users, it must copy the work in its entirety in order to provide this service. The “de-minimus” standard is often applied to the third prong of the fair use analysis, making it hard but not impossible for substantial copying to be considered fair use. In Campbell, the Supreme court, in addressing the question of substantiality found that, “[the] extent of permissible copying varies with the purpose and character of the use” (p. 744). In UMG Recordings, Inc. v. MP3.Com, Inc. , the Southern District of New York found that even when a work was copied in its entirety (from a CD to a MP3 format), the resulting copy did constitute a “fair use”. (p. 814). In analyzing Google’s use, this Court finds that the purpose of the copying is to allow users to run a full-text search against all books in the google database which match their query. In other words, Google is not primarily using the protected expression for expressive purposes or for the value of the expression itself, but is instead scouring the pages for the facts contained therein: the word “Washington” appears on page 211, the words “Revoluonary War” appear on another (and so on). When the expressive nature is used to give a user context, it is done so in limited, short segments that the Court considers de-minimus. Therefore, the Court finds that the portion of use in relation to the work as a whole is reasonable and therefore favorable to Google’s fair use defense.

Finally, the Court address the fourth and most important factor, the effect on the potential market (p. 789 middle). In measuring the potential affect, the Court should weigh the copyright owner’s expectation of gain against the public benefit shown to justify the use. (p. 745). The Second Circuit in Dr. Suess stated that “[t]he less adverse effect that an alleged infringing use has on the copyright owner’s expectation of gain, the less public benefit need be shown to justify the use” (id). The Court finds there to be no detrimental impact on the market for books. In fact, it would seem that the Google search system serves as perhaps the most effective selling tool available to the publishing industry. The system can drive sales because it establishes a book’s relevance (and therefore, its value) to users looking for relevant content. Google’s search will most likely have the effect of increasing sales when users are assured the book’s contents contain the valuable information.

Given the overwhelmingly positive effect Google’s search system has on the market for books, the Court need only find a reasonable public benefit to find in favor of fair use. The Court finds that this bar has been surpassed by wide margins. The public gain an incredible advantage when the wealth of knowledge of an entire library is at their fingertips.

CONCLUSION

We can think of nothing that would further promote the progress useful arts then tools and systems that allow the public to find the materials that interest them through legal means. Granted, Google must walk a fine line; uses of this information that have adverse affects on authors and publishers will undoubtedly come under the most serious scrutiny. Nevertheless, the system as it currently operates seems to benefit both the authors and consumers equally with no apparent adverse side effects.

The Court hereby grants summary judgment to Google on all counts. Attorney’s fees are not awarded to either party.