I've never seen such serendipity - the article on the lawsuit was the first email I opened when arriving home, while the arguments were still fresh in my mind from the class discussion.

Moreover, the Jon Brand brief relies almost entirely on Kelly v. Arriba, which we also read for last class. Arriba really does seem the most on-point, too.

However, I would argue that a few factors differentiate Authors Guild from Arriba. While it's unclear whether these factors would affect the fair use analysis, I think some might carry weight.

The most obvious yet cosmetic difference is that the case is in the 2d Circuit rather than 9th, and the Southern District isn't bound to treat Arriba as precedent. Indeed, it's only cited twice in the circuit, but both times by the SDNY.

But the big difference relates to the commercial factor - Google actively employs a large scale operation to scan all these books, presumably for the reason that it stands to commercially gain. Arriba had/has automated software. The investments were of different scales. While Arriba's contribution may have dented the relatively finite universe of image search engines (which, perhaps not coincidentally, Google now rules), Google's contribution threatens to revolutionize the brick and mortar library system. Google is becoming so dominant in so many online areas that it is not difficult to imagine one day in the future (a future with far more fixed standards) it could be considered a common carrier.

The Onion hinted at this a few weeks back when it ran a story "Google Announces Plan To Destroy All Information It Can't Index." Google has been a fairly benevolent, innovative, and inspiring corporation thus far - by thinking way outside the box, they made the internet far more usable for everyone. And obviously old copyright paradigms fail when applied to the internet.

But what are the logical tactical extensions to Google's new service a few years down the road? Pay per book? Price packages? While it seems far fetched now, suppose as a result of this service, reading habits change to the point where people become satisfied to only read the parts of books they find necessary, which are now easy to find via this service. Google is basically without a competitor, and therefore doesn't feel the need to partner with organizations like the Authors Guild, much less request their consent.

I don't actually believe that this isn't fair use - I personally think a court finding against Google here would set a very bad precedent and slow the growth of the internet.

But from a purely economic point of view, there is a lot of money at stake and copyright holders were not included in Google's plan. Google dictated the terms to the copyright holders on a take or leave it basis. Also, opt-out provisions have a dubious history in class action law, so that could also be problematic.

The analysis in Arriba that image copyright holders only stood to benefit commercially by this Arriba's search engine is correct, IMO, but also somewhat speculative.

It gets even more speculative when applied to Authors Guild, because where an image is objectively less 'useful' at lower resolutions, some people may not purchase a book because they were able to find out everything they needed to know from Google's reproduction. There are intrinsic differences between photographs and books. And in fair use analyses, the fourth prong is in more ways than one often the 'money prong'.

I'm rooting for Google, but think that it is a closer call than Arriba.