©ollectanea

A question for Georgia in particular: if you have read the Ninth Circuit Court of Appeals decision in Perfect 10 v. Amazon (Google) of May 16, does it strike you, as it does me, that this is a perfect (sorry about the pun!) case of what you argued about fair use analysis in general in your article "Google This!"? It seems to me that the court here decided that the overall "social utility" provided by the searching mechanism was sufficiently valuable to trump proprietary interests and then worked from that conclusion backward to justify it through an often (to my mind) tortured analysis of the four factors. I wonder what Judge Leval would have to say about how some courts like this are stretching his concept of "transformative use" to justify anything that is functionally different, no matter how it really contributes to the advance of knowledge. Judge Newman in the Texaco case rejected the "social utility" of photocopying as grounding fair use. I suppose we'll find out sooner or later if and when the Google case reaches the court of appeals in the 2nd Circuit where Judge Leval sits. And by the way, Georgia, when and where will your article finally appear? I've been citing it often, but it would be nice to have a permanent citation for it to use.