If you haven’t tried it, Vine is a tool to make looping, six-second video clips and post them on social media or a website. The company, which is owned by Twitter, launched in January and its videos have already become a part of the Tribeca Film Festival, the U.S. Senate and major marketing campaigns.

A new video mash-up culture

Vine exists because of new smartphone technology but it also replicates older forms of mashup culture. In particular, it mirrors what pioneering hip-hop artists started to do in the 1980s — taking sounds from myriad sources and sharing them through records like Paul’s Boutique and Ready to Die.

Those hiphop records are aural tapestries that today stand as monuments to a new form of music and community. In the 2000s, however, copyright collectors came along and sued the rappers — resulting in a drawn-out debate over where to draw a line between culture and intellectual property theft. Hip-hop  largely prevailed but was damaged in the process.

Now, a fight over a Vine video last month suggests history may repeat itself but this time, on the video front. The dispute involved the musician Prince using a law called the DMCA to force Vine to take down six-second concert clips posted by a fan. The fan didn’t oppose Prince’s takedown demand, meaning no one has ruled on whether a six-second clip actually infringes copyright. But if a court did look at the Vine case, the decision process would lead right through hip-hop.

Hip hop, copyright and six second samples

In the 1990s, hip-hop artists called the sounds they use “samples.” Copyright owners, however, called it theft instead and sued the musicians. The conflicts led to important court decisions about music, but whose principles apply equally to Vine.

As the Disco Project explained in a thoughtful analysis of the Prince case, the most relevant precedents involve the Notorious B.I.G. and the Beastie Boys. Both were involved in famous cases involving short samples.

In the case of the Notorious B.I.G., a Tennessee court shut down store sales and radio plays of the late rapper’s “Ready to Die” album, and a jury awarded $4 million in damages — all over a three note horn riff. An appeals court, which had earlier written “get a license or do not sample,” upheld the verdict in 2007.

As law professor Tim Wu explained at the time, the case and others like it were especially absurd because the copyright owner was not even a musician but a one-man corporation who had obtained the music rights under shady circumstances.

Fortunately, in the case of the Beastie Boys, a California appeals court took a more rational approach to the issue and ruled that a six second (the same length as a Vine video!) flute sample on the song “Pass the Mic” didn’t infringe on copyright. The Supreme Court, in 2005, refused to reconsider the decision.

The upshot, however, is that today we still don’t know for sure how long a sample can be before it infringes copyright. Twitter declined to comment on whether it believes Vine videos are covered by copyright law’s “fair use” exception, but a source familiar with the company told me that the decision to make the videos six seconds long was not a coincidence.

Chilling our new visual culture

The trouble with Prince’s request to take down the Vine videos is not so much the disappearance of the videos themselves — but instead that Vine and other forms of visual expression could meet the same fate as early hip-hop.

When the Beastie Boys released their sample-stuffed 1989 masterpiece, Paul’s Boutique, the law was still in a gray area and no one was suing hip-hop artists. That’s no longer the case. As copyright scholars have explained, the threat of lawsuits and the astronomic cost of clearing samples means, today, no one could make an album like Paul’s Boutique in the first place.

And that’s the danger posed by Prince. Right now, we’re enjoying a rich new age of images — everything from Vine videos to BuzzFeed cat GIFs that are shared, recast and then shared again. If lawyers began to throw copyright grenades into this mix, these splendid strains of creativity could be quickly snuffed out.

Does this mean that all Vine videos should be fair use? It’s hard to say. People are already using the platform to produce clever and original works of art — the sort of thing copyright law is meant to reward. Likewise, big companies who use Vine for marketing have a case for using intellectual property law to protect their brands. It seems inevitable that these issues will get resolved sooner than later.

The biggest task for now, though, is to find a way to do so without resorting to the harsher tools of copyright law, including the $150,000 damage demands that are a common feature of cease and desist letters. Congress is right now reviewing the Copyright Act. The process presents a perfect way to protect and foster this emerging age of visual culture — rather than try to smother it like hip-hop. But let’s give the last word to the rappers (click on the Vine vid below):

  (Image by R. Gino Santa Maria via Shutterstock)

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On the surface, the hearing was supposed to determine if a lower court made a mistake last year when it ruled that the case could proceed as a certified class action, meaning that the Authors Guild can seek damages from Google on behalf of every writer whose book was scanned.

The three appeals court judges, however, appeared less interested in the technical aspects of class actions than they were in tackling “fair use” — a four part test that examines whether a given activity (in this case Google’s book scanning) should be exempt from copyright.

“Shouldn’t we address that first?” asked Judge Pierre Leval, a noted fair use scholar, adding that the issues in the case appeared to be “out of sequence.”

Leval and fellow judge Barrington Parker appeared sympathetic at times to Google’s position that the book scanning is transformative and acts as a discovery method, rather than as a replacement for book sales. They suggested that the lower court should address the fair use issue sooner than later.

“If the case is continued, you could face decades of litigation,” said Parker. “This project, with potentially enormous value for our culture, has this great cloud hanging over it.”

Judge Leval also suggested that the book scanning may be analogous to a famous fair use case known as “Perfect 10,” in which a California case held that showing thumbnail images in search results is fair use — even though the entire image is reproduced.

One or many lawsuits?

Google’s lawyer, Seth Waxman, reiterated Google’s position that the scanning is transformative but argued that the court should decertify the class, and require the plaintiffs to proceed individually — rather than as a unified block.

The search giant’s position is that the millions of authors in question have very different perspectives on the scanning — and that many of them support it. The latter, Google said, shouldn’t be forced into a lawsuit they don’t support. In its earlier filings, Google produced a survey that said many authors like the idea of having snippets of their books appear in the company’s search results.

The appeals court, however, appeared reluctant to break the case into multiple baskets of plaintiffs, and questioned if this would lead to separate cases for every type of book.

“You’re going to have to get this resolved. Are you going to have five, 10, 20 different lawsuits? Poetry, science, math table ligation?” Judge Parker wondered

The Authors Guild, meanwhile, wants to go ahead with the fair use ruling, at trial if necessary, without distinguishing the different types of books and authors at issue — a potentially risky proposition for the Guild too.

The court drew a laugh when it asked the Guild’s lawyer, Robert LaRocca, if the group would be comfortable betting the whole fair use ruling on a sample scanned book of Google’s choosing.

The judges also asked LaRocca to explain why some authors were supporting Google’s position; he described them as “a very, very vocal group out at Berkeley.”

What next: some possible end games

It’s risky to read legal tea leaves from the questions judges ask. But, in this case, the appeals court appeared to be strongly considering remanding the case for a ruling on the fair use question — a decision that could then be appealed back to the Second Circuit.

The situation, however, is complicated by internal judicial politics. Specifically, the lower court judge who would have to take up the fair issue is Denny Chin — who now sits on the Second Circuit as a colleague of the three judges who heard today’s hearing. In the past, Chin has shown more sympathy to copyright owners than Leval; the trick for the appeals court, then, is to hand the case back to Chin with obvious guidance, but without upbraiding his handling of it so far.

There is also, of course, the question of money. Google has enough cash to litigate to the Supreme Court and back without breaking a sweat. The Authors Guild, on the other hand, may be feeling stretched as it pays for the appeals in the current case, while also pursuing a parallel case, known as HathiTrust, against a group of university libraries.

At the Tuesday hearing, the Authors Guild’s attorney said paying up would cost Google just 90 days of earnings — or around three billion dollars. It’s an interesting idea, but it’s not going to happen.

First, Google can litigate this thing till the cows come home. Second, the actual amount at issue is much less than the extravagant multibillion dollar figures flashed in numerous headlines. As I’ve explained before, the Authors Guild is seeking $750 per scanned book — but the actual number of books that would qualify is far fewer than the overall number of what Google has scanned.

Another possible outcome is that the appeals court agrees with Google’s request to decertify the class. This would likely force the Authors Guild to pack up and go home, leaving the handful of individual author plaintiffs to take on Google’s mighty lawyer machine out of their own pockets — game over, in other words.

Finally, the two sides may enter settlement negotiations (if they haven’t already) to permit the Authors Guild to enjoy a symbolic victory and, possibly, recoup some of their legal fees, while letting Google appear as a good guy. But don’t count on this, especially, if Google believes it can win the fair use ruling.

To read more background and insider details on the whole saga, see my e-book: “The Battle for the Books: Inside Google’s Gambit to create the world’s biggest library.”

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The controversy turned  on art projects in which Prince incorporated photographs from Yes Rasta, a portrait book about Rastafarians by photographer Patrick Cariou. In some cases, Prince altered the photos so the originals could barely be recognized:

But in other cases, Prince made only minor alterations, such as adding face blotches and a blue guitar:

Cariou, who earned about $8,000 from the sale of his book, sued Prince for copyright infringement. Prince, whose individual works fetched up to $2 million, argued that his modifications amounted to a “fair use” exception under copyright law.

In 2011, a federal judge sided with Cariou and issued an injunction against Prince and an order for any unsold works to be destroyed (they were not).

Can judges be art critics?

In her decision, U.S. District Judge Deborah Batts concluded that Prince’s work was not transformative — and did not qualify for fair use — because it didn’t satirize or otherwise comment on the original photographs. On appeal, a unanimous three-judge court wrote that Batts got the law wrong and said there was no such requirement under fair use.

Citing Andy Warhol’s Campbell Soup cans and the rap group 2 Live Crew’s parody of “Pretty Woman,” the appeals court noted that many fair use cases did indeed comment on the original, but that this was not essential. In the case of Prince, the court said, his works are transformative in part because they are “hectic and provocative” compared to Cariou’s serene and beautiful photographs.

On a technical level, the “transformative” requirement is just a sub-step in one part of a four-pronged fair use analysis. Increasingly, however, it’s also becoming a shorthand for courts to determine if someone is using an image in a new and legitimate fashion, or just ripping off and devaluing the original.

In resolving the Prince case, the appeals court found that 25 of the 30 images were transformative but added that it did could not say “confidently” whether five of the others — including the blue guitar picture — were as well. It returned the case to the original judge to mull over the five pictures in more detail.

One of the three appeals court judges stated, however, that he was uncomfortable acting in the role of art critic and that the original judge should re-evaluate all 30 pictures with the help of expert opinion and other evidence:

So what is “transformative” on the internet?

The Prince decision could affect not just the art world, but internet culture as well. That’s because the decision comes at a time when images are becoming ever more central to online news and social media platforms — and while the rules for using them are unclear.

Sites like BuzzFeed, for instance, have taken an aggressive approach to image appropriation, declaring that almost any use is “transformative.” This approach is well-suited to the fast-paced, mash-up style of internet journalism but is also a source of frustration to photographers and others who feel artists deserve more control over their work.

The Prince ruling, while not a green light for anyone to use photographs as they see fit, appears to provide broader legal cover to appropriation artists and experimenters. Here’s the decision itself with some of the more significant passages underlined.

A previous version of this article stated that the “Pretty Woman” parody was by Salt-n-Pepa. It was by 2 Live Crew.

Cariou v Prince, 2nd Circ

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That’s why it’s a relief to see a new group enter the debate. In the last six months, a growing number of figures on the political right have been taking aim at our broken copyright system and offering some very sensible solutions.

The arrival of these conservative reformers, who join longtime liberal copyright critics, means the U.S. may at last get to have an honest debate over the best way to compensate content creators.

The current mess

It’s worth recalling just why the copyright system is so troubled in the first place and and who is responsible. For starters, note that U.S. copyright has ballooned from its original term of 28 years to the life of the author plus 70 years — meaning a young novelist or songwriter’s work is now likely to stay locked up until the year 2143 or beyond.

There is no justification for these absurd copyright terms other than as a form of corporate welfare to the entertainment industry. The Constitution’s rationale for copyright in the first place is to “promote .. useful Arts.”  It’s inconceivable that an artist will not pick up her pen unless she is promised 100+ years of copyright protection.

While the terms are a problem, copyright enforcement is a mess too. This is partly because Congress gave copyright owners a very big stick that lets them seek $150,000 every time someone takes their content without permission — even if the infringement led to zero economic loss. The chance to impose such big penalties for a trifling offense has led to a spate of abusive lawsuits by copyright trolls who target bloggers or file mass “John Doe” complaints intended to embarrass gay porn viewers.

Despite all this, copyright infringement still remains widespread. Call it “sharing” or call it “theft” — however you describe it, people keep helping themselves to content without offering a dime to the writers, musicians or film makers who made it.

To justify this behavior, pirates point to the mendacity of the entertainment industry to say, in effect, that content owners have it coming to them.  There is some validity to this (especially as the industry often shortchanges the artists it purports to stand for) but it doesn’t address the underlying issue: how should we pay content creators? If we agree on having a copyright system in the first place, it needs to work in a way that allows writers, musicians and photographers to make a living.

Right now, what we have instead is a copyright system that is unfriendly not only to consumers but often to individual creators as well. While big companies can flex legal muscles to chase copyright violators, the law doesn’t offer authors a simply way to seek payment when someone blatantly rips them off.

Unfortunately, for now, the debate over how to fix copyright remains dominated by industry lobbyists on one side and piracy apologists on the other. The result is an unhealthy stalemate in which those who propose a middle ground risk being labeled as a thief by the industry or as a stooge by its critics.

The conservative case for copyright

The copyright debate is not entirely controlled by the ideologues, of course. In the last decade, scholars and journalists (Lawrence Lessig, Bill Patry, Cory Doctorow and Mike Masnick to name a few) have made eloquent arguments about reforming the law.

The problem is that these copyright critics come from the same world; they’re all liberals with ties to Silicon Valley. This has made it easy for the entertainment industry to caricature them and for Washington to ignore them.

Now, though, the case for copyright reform is being made by figures on the right as well. Last fall, the famous judge and law-and-economics scholar Richard Posner declared copyright terms to be too long and warned that poorly defined fair-use rules can have “very damaging effects on creativity.”

This conservative critique heated up significantly in January when a Republican memo in the House attacked over-reaching copyright laws as an assault on laissez-faire capitalism. The entertainment industry soon stepped in to smother the memo and get its author fired but the memo’s contents are still resonating.

In late January, the American Conservative published a lengthy feature on “crony copyright” that repeated the memo’s economic arguments and also reported that the Tea Party and the Heritage Foundation are taking a growing interest in IP reform. Since then, the right-wing Washington Times printed an op-ed criticizing the White House for trying to use copyright to control public domain photographs.

So what does all this mean? The significance is that copyright reformers have powerful new allies and fresh intellectual ammunition. While the left has relied on cultural arguments to attack the copyright system, the right makes a compelling case based on economics.

Chance for a grand bargain

This conservative conversion to copyright reform comes at a crucial time. The rise of sites like Twitter and Tumblr mean it’s easier than ever to share images, music and movies. In this context, copyright that lasts more than a hundred years makes even less sense and the opportunity for abusive lawsuits is even greater.

The emergence of a combined liberal and conservative case against the current copyright system offers the chance to reach a grand bargain. Specifically, there is now an opportunity to create shorter copyright terms and to fix the enforcement regime so that it doesn’t permit content owners to wield a $150,000 hammer over every infraction. In return, a more balanced copyright law would help to undercut many of the moral justifications that lead people to turn to piracy in the first place.

(Image by Viorel Sima of Shutterstock)

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When you purchase a digital music track, e-book, digital movie or other type of downloaded content, you aren’t actually buying it, as you would a printed book or CD.  Instead, you’re licensing it, in the same way that you license software.  This means that you get rights to that content that the publisher defines in a license agreement, instead of those granted to you by copyright law.

Digital content licenses typically give users the right to play or read the content.  But what if you want to sell, lend, or give away your digital files?  Under U.S. copyright law, you’re allowed to do this for physical media products, thanks to a concept called the First Sale doctrine.  First Sale says that the publisher has no control over what you do with a media product once you buy it.  Used bookstores, video rental stores, and libraries all owe their existence to First Sale.

Yet current U.S. legal convention dictates that in most cases, First Sale doesn’t apply to digital files.  Very few publishers or retailers give you the right to transfer your files to others.  As a practical matter, “Digital First Sale” would mean that you could transfer ownership of your files to others legally as long as you delete your own copies – including backups, copies in cloud storage, and so on.  This implies one of two things: either you are trusted to delete their copies, or there must be a robust, legally mandated mechanism that does it automatically.

Digital First Sale: Not Now, Maybe Later

The U.S. Copyright Office wrote a report on Digital First Sale in 2001 that described an automatic “forward-and-delete” mechanism, but it determined that it would not be practical to require this by law, nor should people be trusted to delete all of their copies; therefore it recommended maintaining the status quo.

Why is this issue becoming a big deal now?  One reason, ironically, is that most downloaded music files and some e-books are now DRM-free.  If a digital file is encrypted with DRM, then First Sale is usually a moot point: you send copies of the file to friends, but they can’t use in on their devices.  With DRM-free files, you can send your files to other users, who can play or read them; but the licensing agreements under which you bought them probably forbid this.

Amazon in particular is quite explicit about this.  The Amazon Kindle Store Terms of Use, for example, give you rights to e-books “solely for your personal, non-commercial use” and state that “Kindle Content is licensed, not sold, to you by the Content Provider.”

First Battlefield: Record Labels and Retailers vs. ReDigi

A startup called ReDigi is testing this law by offering a service that allows people to resell “used” digital music files.  Its software includes the type of forward-and-delete function that the Copyright Office contemplated, though it only works with music purchased from iTunes and Amazon.

ReDigi was (unsurprisingly) sued by one of the major record companies, though it has sought to mollify others by offering them a slice of revenue from each transaction.  Yet this puts the company in a strange place: on the one hand, they claim to be enabling a form of First Sale, but on the other hand, they’re undermining the core idea of First Sale by seeking permission from record labels and giving them a piece of the action.

The forces arrayed against ReDigi are formidable.  Digital files are perfect copies: they don’t have scratches, dog-eared pages, or cracked jewel cases.  Retailers don’t want to be undercut by resellers that will force prices down: imagine iTunes’s reaction if “used” files could be sold on eBay.  Publishers don’t want to lose revenue to secondary markets either.  In other words, both the media and content retail industries are dead set against Digital First Sale.

Second Battlefield: Libraries vs. Publishers

The other growing storm over Digital First Sale is library lending of e-books.  Public libraries currently “lend” e-books by distributing them with DRM so that they expire after the libraries’ lending periods.  Yet while First Sale enables libraries to acquire whatever printed titles they want to lend, publishers get to decide which of their titles they will license for e-book lending and on what terms.

One problem with this is that publishers have divergent e-book lending policies.  Macmillan and Simon & Schuster don’t allow e-book lending of their titles at all. HarperCollins provoked outrage from the library community by putting a limit of 26 “lends” on each title, apparently to mimic the shelf life of hardcopy books before they wear out.

The law gives libraries no leverage against publishers in this situation.  Furthermore, libraries are now facing competition from the private sector: for example, Amazon’s Kindle Owners Lending Library (KOLL) allows Amazon Prime members to “borrow” one e-book at a time at no charge.  Availability of e-books through public libraries is likely to deteriorate further into both chaos and irrelevance if nothing is done.

To break the impasse, libraries are pushing for Digital First Sale rights in the law.  Libraries recently joined together with other, better-heeled entities in a lobbying group called the Owners’ Rights Initiative (ORI).  The ORI, which launched back in October, is a “strange bedfellows” coalition of library trade associations, companies such as Chegg (used textbooks) and Redbox (DVD/Blu-ray kiosks) that could expand into resale of digital content, several companies that sell used IT equipment, and last but not least, eBay.  The ORI’s slogan is “You bought it, you own it.”

Digital music resale and library e-book lending are just two of what will undoubtedly be many digital content distribution models that will touch on the issue of Digital First Sale – a law that, like other aspects of copyright, seems increasingly irrelevant as content moves from physical products to formless bits.  As the controversies and lawsuits grow, the inadequacy of the status quo will be increasingly clear.

Bill Rosenblatt is an authority on digital rights management and President of GiantSteps Media Technology Strategies

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In a brief filed late Friday in New York, Google argued that a class action trial would deny it an opportunity to argue on a book-by-book basis that its scanning was a so-called “transformative” use that falls outside of copyright. This “fair use” argument received a boost in October when a judge dismissed a similar case that the Authors Guild brought against a group of university libraries over a digital collection known as the Hathi Trust.

The new filing by Google is just the latest twist in a case that began in 2005 when publishers and the Authors Guild sued the search giant over its ambitious plan to scan the world’s libraries. The parties eventually reached a settlement that would have created a market for millions of forgotten, out-of-print books but US Judge Denny Chin blew up the deal in 2011 after critics warned it would create a monopoly. The publishers recently dropped their lawsuit against Google but the Authors Guild is pressing on with demands for $750 per book. While the search giant has scanned more than 20 million books, only a relative handful would qualify for compensation under the lawsuit due to legal technicalities.

Overall, the Authors Guild case turns on whether Google’s scanning was “fair use.” Ordinarily, copying an entire work is not fair use but Google argues that its scanning qualifies because the digital copies don’t compete with the existing books but add “something new” — “a greatly improved way of finding them.” The company also argues that the scanned books, which can be seen only in small snippets, do not hurt the market for the original book.

While this is the argument in the bigger picture, Google’s appeal on Friday targets a more narrow question: should the authors be permitted to sue together. Google says they should not because most authors actually approve of the scanning, and that these authors shouldn’t be dragged into a legal action with those who don’t:

Plaintiffs’ objective is to dismantle a project that benefits many, and perhaps most, other class members … [A class certification] would deprive many authors of the benefits they obtain from Google Books—a result those authors could not avoid by opting out of the class. And those authors are numerous: A random survey of published authors by Google’s expert showed that 58% approved of Google scanning their copyrighted books so that the books could be searched online and snippets could be displayed; 45% had seen or expected to see demand for their books increase (versus 4% who expected demand to decline); and 19% said they financially benefit from the project (compared to only 8% who said they do not).

Chin rejected this argument in May and took the big step of “certifying the class” which is a green light for a class action to go to trial. The US Second Circuit Court of Appeals granted Google permission to appeal the certification in August, however, which effectively put the proceedings on ice. The case also slowed after Joanne Zack, a class action expert representing the Authors Guild, passed away suddenly this fall.

It’s impossible to know exactly what’s going on behind the scenes but it’s a good bet that the Authors Guild is pushing for a settlement that will give it at least a symbolic victory and let it recoup its legal fees. Copyright scholars, meanwhile, have been hoping for a grand decision in the case that will provide a working definition of fair use in the digital age.

You can read Google’s filing for yourself here:

Google Appeal Brief on Cert

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Credit: Marvix Photo

First, the facts. Florida-based Mavrix Photo filed a complaint in LA this week that claims BuzzFeed deliberately scraped the celebrity images as part of an effort to drive traffic to the site. It cited nine photos, including Perry on a rooftop (see right) and Griffin dancing topless (NSFW, obviously).

On its face, the case seems straightforward enough: even if celebrity photos are inane, people want to see them and photographers have a right earn a living by snapping them. Why should BuzzFeed or anyone else use them for free?

But it’s not that simple. That’s because Mavrix appears to be in the business of copyright trolling — scouring the internet for unauthorized use of its images and threatening anyone who uses them with million dollar lawsuits. This practice has recently degenerated into lawyers recruiting other lawyers to hunt down a hit list of alleged infringers with a promise to share the bounty.

The legal dilemma is a result of the very big stick that the law gives to copyright owners — the right to seek damages of up to $150,000 for each single infringement. This penalty has its place as a nuclear option of sorts to stop or deter serial infringers. Unfortunately, some image owners are brandishing the nuclear option against everyone — from small blogs to careless interns (who may have been responsible for the BuzzFeed shots)  – without taking any account of the actual harm done by the copyright infringement. Instead of a simple request to take the image down (which most people would comply with), we get a legal train wreck.

In age when images are everywhere (Tumblr, Pinterest, BuzzFeed, an so on), the $150,000 nuclear option seems impractical and unfair except in the most egregious cases. A better option would be for Congress to consider crafting some type of small claims court for copyright with graduated penalties for repeat offenders.

Buzzfeed stated it’s looking into the lawsuit but declined to comment further. You can read the complaint and see the offending pictures for yourself below:

Mavrix v BuzzFeed
(Image by Yuri Arcurs via Shutterstock)

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According to Google, its massive book scanning project is fair use because the scanning has delivered many public benefits without harming authors. The company claims that its creation of full-text book searching is “the most significant advance in library search technology in the last five decades” and that the Authors Guild has shown “no evidence that Google Books has displaced the sale of even a single book.”

The new filing (embedded below) is in response to Judge Denny Chin’s deadline for Google and the Authors Guild to submit arguments on why the case can be decided without a trial. This is just the latest phase of a legal dispute that began in 2005 after authors and publishers sued Google over its ambitious plan to create a massive digital library. The lawsuit was on ice for several years as the parties worked out a settlement that would have created an online market for the books. Judge Chin blew up the settlement in March 2011, however, after concluding that it was a “bridge too far.”

Chin now has to decide whether Google must pay for scanning each book without permission or whether the scanning amounted to “fair use.” The test for fair use involves looking at four factors, including whether the copying was “transformative” as well as the reproduction’s effect on the market for the original work.

In its filing, Google cites a number of pop culture examples to argue that a searchable digital library is a benefit to the public. For instance, Google cites an Atlantic article (“The Foreign Language of Mad Men”) that relied on a Google Book search to show that characters in the hit show Mad Men were using dialogue from a later era. The company also describes how book searches unearthed references to an unheralded baseball player, Steve Hovley, that would otherwise have remained buried. And Google cites the more serious example of Minoru Yasui, a civil rights lawyer who is all but invisible in the Library of Congress catalog but surfaces repeatedly in Google Books.

Google also cites evidence suggesting that online book discovery helps authors sell more copies. It quotes a memo from literary agency William Morris that says “inclusion in Google Books is a fair use and not detrimental to the copyright owner in any way” and points to the Authors Guild’s own suggestion that writers make a chapter of their book freely available on the internet.

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