Judge Denny Chin’s opinion in rejecting the settlement between Google and the authors and publishers who sued it for infringement of their copyrights can be read as both as a map of wrong turns taken in the past and as an invitation to design a better route into the digital future. Extrapolating from the dense, 48-page text that accompanied the judge’s March 23 decision, it is possible to locate six crucial points where things went awry:
First, Google abandoned its original plan to digitize books in order to provide online searching. According to that plan, you would have been able to use Google to search the contents of books for a particular word or brief passage, but would not have been able to view or download a lengthy excerpt or an entire book. Thus, Google could have justified its display of snippets of text in the search results by invoking the doctrine of fair use. In this way, it might have won its case against the plaintiffs, the Authors Guild and the Association of American Publishers, and at the same time it could have helped revive fair use as a legitimate means of spreading knowledge—for example, in making digitized material available for teaching purposes.