Francis Schaeffer has been, for most of my adult life, a person of considerable interest.  As a curious teen, Schaeffer introduced me to the world of reformed theology and the provided reasonable explanations to the often challenging doctrines of predestination and grace.  Even apart from his theological ideas, Schaeffer had a gift for communication; his writing is substantive yet very approachable and his various speeches are indicative of an Oxford education.  One cannot help but be reminded of CS Lewis when reading Schaeffer — their style, intellectual capacity, and heart for the Lord seem to me very similar.

Each of these traits and impressions have left me with a certain fondness for his writing.  On somewhat of a whim, I have decided to re-read through many of his books I rushed through as a high-school student and have long since forgotten.

The first of these books — or in this case a small pamphlet titled “Art & The Bible” — is an overview of Schaeffer’s understanding of Art and it’s place in the Christian worldview.  The entire first half of the book is essentially a recitation of all the references to art in the Old Testament.  Shaeffer systematically points out that much of the art God commanded of the Israelites was for purely asthetic purposes.  Schaeffer references certain elements of the Temple in particular:

Then in verses 16 and 17 [of 2 Chron 3:7]we read, “And he made chains in the oracle, and put them on the tops of the pillar; and set the pillars before the temple, one on the right hand, and the other on the left.”  Here are two free-standing collumns.  They supported no architectural weight and had no utilitarian engineering significance. They were there only because God said they should be there as a thing of beauty.

I think Shaeffer’s point here is that even in the Old Testament, God was ‘sanctifying’ “Secular art”.  Schaeffer is careful not equate “secular” art with”sacred” art, but he is very clear that art need not be sacred to have value.

After having established that secular art can be pleasing and acceptable to God (in fact, Shaeffer goes as far as to say that a work of art is “a doxology in itself”), Schaeffer then begins to establish a framework with which Christians should approach art.  His first approach: Art as Art.

You see, for Schaeffer, art has a certain intrinsic value; its worth is in the fact that it is a product of creativity and that creative impulse mirrors the character of God:

As a Christian we know why a work of art has value.  Why?  First, because a work of art is a work of creativity, and creativity has value because God is the Creator.  The first sentence in the Bible is the declaration that the Creator created… so too the first words of the prologue of the Gospel of John…

He continues:

…[I]t is part of the image of God to be creative, or to have creativity…  All people are to some degree creative.  Creativity is intrinsic to our manishness.

Schaeffer’s next framework has to do with art as worldview.  He posits that a person’s ideas are inexorably linked to their worldview (although he seems to make a certain exception for purely abstract art).  Schaeffer explains that all art uses a certain language or vocabulary that is universally understood… in many cases, the created world we In some cases this “subtext” or implicit communication is sometimes more powerful than the image itself:

When Giacometti pictures the awful alienation of man, he makes figures which are alienated, but he is still living in God’s world and is still using the common symbolic forms no matter how he distorts them.  He plays with the vocabulary, but the vocabulary is still there.  So there is a communication between Giacometti and me, a titanic communication. I can understand what he is saying and I cry.

One wonders if we all would have such strong reactions if we really understood the ‘language’ the artists are speaking.  Music has certainly had this effect on me, and perhaps art could as well if I had the training.  I suppose there is a reason we build massive monuments to house, display, and protect art… it is perhaps the purest form of communication — and therefore the most valuable.

Interestingly, Schaeffer is not at all hesitant to make astetic value judgments as to the quality and value of a particular work of art.  In fact, he puts forth several criterion by which we should judge a work of art: 1) technical excellence, 2) validity, 3) intellectual content, and 4) the integration of content and vehicle.

Technical excellence is an objective inquiry and I will not elaborate on it here.  Validity, on the other hand, is worth explaining.  To Schaeffer, a work is valid if the work in question is a natural outflow of an artists own creative ideas and philosophy.  In other words, it is valid if it is representative of an artist’s OWN creative impulse.  According to Schaeffer, “commercial art would” would be an example of art lacking in validity.  Unlike ‘pure’ art, commercial art does not require an artists’ worldview to be incorporated in the work and therefore, the work lacks the same ‘power’ it otherwise might have.  Now, I must say I’m not entirely sure I agree with Schaeffer on this point:  Whether or not the artist’s own ideas come through does not mean that there is not the communication of a worldview.  I would at least argue that a work of commercial art could communicate any philosophy to any viewer with as much effect as the artists may himself be capable of.  These creative impulses and their relation to the message is certainly an interesting aspect of the creative process, but I am not convinced on the basis of Schaeffer’s argument that there is an objective difference between the communication in each instance.

Next, Schaeffer explains how a work’s intellectual content is to be addressed:

If we stand as Christians before a man’s canvas and recognize that he is a great artist in technical excellence and validity — if in fact he is — … then we can say that his worldview is wrong.  We can judge this view on the same basis we judge the views of anybody else…

The ability to objectively assess art is pivotal for Schaeffer because he recognizes the communicative power of art – especially art meeting the aforementioned criteria.  Schaeffer recognizes that when art communicates moral principles contrary to those of scripture, these principles must be addressed from a Christian worldview:

We should realize that if something untrue or immoral is stated in great art it can be far more destructive and devastating than if it is expressed in poor art or prosaic statement.  Much of the crude art, the common product of hippie communities and the underground press, is laden with destructive messages, but the art is so poor that it does not have much force.  But the greater the artistic expression, the more important it is to consciously bring it and its worldview under the judgment of Christ and the Bible.

Finally, Schaeffer distinguishes technical excellence and message from style.  To Schaeffer, “there is no such thing as a godly syle or an ungodly style”.  In fact, he sees the use of modern style as an imperative for the Christian artist.  He is very explicit on this point:

Christian art today should be twentieth-ctentury art.  Art changes, Language changes… [I]f a Christian’s art is not twentieth-century art, it is an obstacle to his being heard. It makes him different in a way in which there is no necessity for difference.

But Schaeffer is careful to provide one important guideline:

“we must use twentieth-century styles [but] must not use them in such a way as to be donimated by the world views out of which they have arisen.

This is a really interesting thought, but I cannot help but to read it without some degree of criticism.  Is a piece of art valueable only because of its message?  Schaeffer himself says that art has value as aesthetic expression alone… would it then be inappropriate for a Christian to paint a still-life with techniques popularized in the 1800′s? — styles which are still displayed in museums to this very day?  Perhaps Schaeffer means to imply that art created with the purpose of communicating a christian worldview should be expressed in a manner designed to be as clear as possible to its audience… and purely aesthetic art need not meet the same criteria.

Schaeffer presents an interesting and helpful introduction to art from a Christian perspective.  Short enough to be finished in a day, it is certainly worth your time should you want to broaden your framework on Christ and the arts.

In short, I have a great deal of respect for this man and usually walk away from his work feeling somewhat enlightened.  I say “usually” because I was initially somewhat disappointed with his recent video series he is doing at pajamastv.com titled “Klavan on the Culture”.

Click image to view video

Here is a makeshift (but reasonably accurate) transcript of the relevant portion I wish to discuss… wherein Klavan says:

“I’d like to explain the Liberal argument. SHUT UP.  ‘Shut up’ is the central rationale behind the leftist program… but even if the left can’t turn ‘shut up’ into law… they’ve worked hard over the years to make it the custom of the country.  Its the essence of politically correct phraseology and university speech codes.  Say it our way or ‘shut up’.  Its inherent in the media’s demonization of conservative commentators… the way they try to turn names like Limbaugh and Coulter into bywords for intolerance so they’ll just ‘shut up’…

His basic point was that the left has a habit of using personal attacks and political correctness to tarnish the reputations of their political opponents than engage them in real debate.  The left tries to turn conservatism into a pariah of sorts… implying that any opposition to liberal policies is because of some underlying racist, bigoted, or sexist motive… in an attempt to shame them into silence.  In fact, we are seeing this right now with the nomination of Judge Sotomayor… you can’t turn on the TV without hearing a lecture about how improper it would be for Republicans to oppose the first female, Latina court nominee.

Now, it is not that I disagree with Klavan, but I was really disappointed in the way he made the point.  I was very skeptical and unimpressed with the simplistic explanation he offered… Liberals just say “SHUT UP” — as if most of them are mentally incapable of having a civilized discussion.  Not only does this not match my own personal experience but I find it to be unnecessarily contentious and, well, rude.  “This is simply an inaccurate description of the left,” I thought to myself.

But then something caught my eye on Facebook, of all places.  I discovered that a liberal aquaintance of mine… a quite pleasant and reasonable woman from all appearances, had joined a group that wants “Dick Cheney to shut the hell up” (it is currently 185,000 members strong… and growning… a quick search for similar anti-Pelosi groups turned up at most 100 people).  “This can’t really be what I think it is”, I thought to myself.  “Is this really a group on facebook?”  I was temporarily speechless.  And then it dawned on me… Maybe Klavan was on to something… Maybe he was telling the truth after all…

What do you all think?  Can you provide any current examples of this ‘SHUT UP’ mentality?  Feel free to support or criticize this post in the comments section… I’d be happy to argue!

What is culture? Sometimes we use that word as the opposite of economics or law. Here I mean something very specific. Culture, as James Davison Hunter put it, is the power to name reality.

If you doubt that, think about divorce for a minute…

When the law actually endorsed unilateral divorce, it changed the terms of everybody’s marriage. Now the happily, romantically married may not notice this in practice. But not only the bad marriages, but the so-so marriages, the good-enough marriages were and are profoundly affected by the law — not only directly, but by the cultural changes in the public understanding of marriage that the law only partly caused and but certainly reinforced and institutionalized.

If you have a right to divorce at will, what you lose is the right to make an enduring marriage — at least if you live in consensual (shared) reality.

I can still hold the view that divorce is wrong — that I have no right to divorce because I made a vow to stay married. But with the advent of unilateral divorce, my views became a privatized view of marriage, not part of the shared reality defined by the law. We privatized this view of marriage precisely when the law privileged the progressive view of divorce.

Maybe you think this was a good change. I will not stop to argue the point now. What I’m trying to point to (for those geniuinely striving but challenged to understand my argument) is that the law mattered. And that the consequences of this legal change was not, in a simple sense, the expansion of liberty, but a change in power, driven in significant part by the cultural power of the law’s power to name reality…

So yes, if you follow the analogy to divorce, parents will still be able to teach their children their own views about what marriage is. But the law will be constantly repudiating that view in a number of public visible ways. Parents are having a very hard time fighting the progressive views of sexual culture, enshrined at law, in any number of ways. This will make it much harder.

When people say the “law is an educator,” that’s true, but it doesn’t go far enough. In this case, the law is an arbiter of reality: Who is really married? Who is really divorced? Who is having an out-of-wedlock child? Who, for that matter, is committing adultery?

The law’s power to name reality matters.

via The Amazing Power of The Culture (Part 3) – Maggie Gallagher – The Corner on National Review Online.

Being the good friend that I am, I thought some illumination was necessary. I proceeded to explain to her that:

What’s wrong with certain books being banned by library staff anyway? Surely even YOU would ban certain books if you were a librarian… for example, I doubt you would get a hustler subscription for your local library…

Librarians MAKE EDITORIAL SELECTIONS TO THEIR BOOK CATALOG ALL THE TIME. That’s why you have any given book in your library is BECAUSE of a conscious choice to PUT IT THERE.

This obviously was not convincing enough for her as she proceeded to say:

What the hell do you mean? Please tell me which power enumerated in the Constitution of the US or in Alaska’s laws give that idiot that right to ban books… I’d love to see Sarah Palin even begin to comprehend a casebook, lmao!!! She can’t handle children’s books in the local library, without getting offended. What a simple minded fool.

Banning books, wanting to teach a non science like creationism in schools, knowing nothing about how the constitution or goverment works, time and time again showing that she thinks she can be the arbiter of values for people who have the right to choose those things for themselves, I consider that i huge fuc**ng issue.

But I guess that’s why I’m a libertarian Joel, I believe in freedom, and people’s right to choose for themselves, and not have some half wit poorly educated blow hard tell me what I can or can’t do.

I’m sure you are getting the picture here; my logic didn’t make a dent. But, being the good friend I am, I concluded I just hadn’t explained it clearly enough:

libraries are not protected by the first amendment you IDOT. People are. Go ahead… explain to me how the constitution prohibits taxpayers from voicing their opinions about how their tax dollars are spent… LIBRARIES do not have first amendment rights!!!!!

Freedom of expression isn’t at issue here. Local communities can decide what they want in their library and what they DON’T want. Why is Palin unable to voice her opinion about what is in her community’s libraries??? Why should HER OPINION about this be stifled? You want to talk about stifling… let’s talk about the assumption SHE CAN’T GIVE HER INPUT. This is Orwellian doublespeak here.

[T]his whole thing is basically an argument that non-religious people are better-suited to decide what we should be learning at our local library than religious people. This is al basically just an attack on Christians and christian beliefs…

This was about as much as I could take. After a few more exchanges of (mostly) personal attacks, I felt my time would be better spent on other things).

However, just yesterday an article appeared in the American Thinker that really drew my attention back to this discussion. The author takes a somewhat different angle on this whole “book banning” issue and, from my point of view, lays it to rest.

Among the many accusations against Sarah Palin was that she banned books. Though debunked, that charge highlights a deeper issue, which is Rule By the Discreet Elite. In this case the Elite is librarians, yet another group credentialed by left-leaning institutions…

When a mayor or parent or just anyone in the community tries to do such a thing, it is called censorship, book-banning or book-burning. When a librarian does it, it is called “selection.”

If a book is removed from a public library, it is not “banned,” it is simply not provided free of charge at taxpayer expense. And if a book is not even removed from the library, but merely taken off its prominent display shelf, it is not banned or censored at all, it is simply not promoted by your local government.

But let’s get back to considering the stocking of public libraries with books. The Library of Congress has about 21 million catalogued books…. That means that just about any library you or your child uses has less than 0.1% of all books in it. Someone must have censored 99.9% of them!

When you choose what books go into a library, you are also choosing what books will not go into that library, since you simply can’t fit them all in. So why are librarians considered the one and only ones who can make such decisions? Concerned citizens can’t. Parents of children who use the school library can’t… That’s censorship. But librarians not only do it, they do it every day. It’s considered their job.

The real question is not which books should be stocked and not stocked at your local library, but who decides.

At the end of the blog fight, my friend tried pinning me with the question: “So is it okay to ban then or not? YES OR NO? Answer the question Joel!!” — to which my response is, well, I think local communities should decide which books to carry and vise-versa. I think that an institution that survives solely by the taxpayer expense should reflect the taxpayer’s values. Libraries SHOULD NOT be used as a tool by which an elite who think they “know better” about what children should be reading to force their ideas and values on to the community as a whole. My friend’s solution to this problem is “don’t fuc***g read [the book]“. While this is certainly a rational solution, it pre-supposes that the book SHOULD be there in the first place! This is a self-contradictory argument and therefore unacceptable. One cannot logically criticize one person for demanding something be pulled while simultaneously demanding it be shelved. It is a clever trick, but in the end, it is no better of an argument. Face it Priscilla, you lost this round!

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.