This is exactly the image that opponents, including the Authors Guild, are promoting to the public: Google as the cynical purveyor of purloined letters, caught tongue-tied, red-handed, and guilty, guilty, guilty.
It's an ugly position to take, and it stinks. But it gets worse: The Guild's take on fair use wouldn't pass muster in a high-school civics classroom. And if I see anyone claim the Guild is simply protecting the "little guy" against corporate greedheads, I may lose my lunch.
From the get-go, intellectual property protection has been a quid pro quo: You help to ""promote the Progress of Science and useful Arts," and in return, society allows you to sue the bejeezis out of people for misappropriating your cartoon mouse.
Yet while the single sentence that spells out the deal might look as plain as day, two centuries of case law on the subject proves that it is not. Neither, for that matter, is the law that defines "fair use": Instead of a laundry list full of copyright do's and dont's, the law provides a set of broad guidelines whose true value lies within the case law dedicated to interpreting them.
Google thinks its reading of fair use, based upon current technology, its plans for using the content, the economic impact upon everyone involved, and the potential benefits to society, is a reasonable interpretation of fair use. It's hardly an oddball position: Attorney Jonathan Brand's analysis supporting the company's case, for example, is both powerful and elegant, and a number of other experts have either cited his analysis in their own opinions or share his opinions on the dispute.
That doesn't mean Google could or should simply go about its business; there are devils lurking in these details, and the wit and wisdom of a federal judge can help to exorcise them. We need this process to happen, if only to weed out the real crooks and scam artists. The Guild's lawsuit may do the job, but only by coincidence: Rather than debating how best to view fair use in the unfamiliar light of new technology, all the Authors Guild has contributed so far is a bunch of thick-headed talk about black and white, right and wrong, crime and punishment.
Consider this quote from the Authors Guild statement cited above:
"This is a plain and brazen violation of copyright law," said Authors Guild president Nick Taylor. "It's not up to Google or anyone other than the authors, the rightful owners of these copyrights, to decide whether and how their works will be copied."
Everyone says stupid things sometimes. They just don't immortalize them in press releases and use them to justify lawsuits.
This isn't just a case of the Authors Guild shooting itself in the foot -- they might also squeeze off a few rounds into the crowd, for good measure. The Guild's effort to try Google in the press won't sway a judge, but it could seriously distort the public's understanding of what fair use is, why it exists, and how it continues to evolve and adapt. Given the degree to which free expression in American society, including everything from scientific research to literary parody, relies upon the concept, it's a cheap and dangerous stunt.
Right now, many of the artists and intellectuals who support the Authors Guild don't want to hear any of this; they're too busy egging on the Guild's attack dogs. If the same people feel a big set of teeth taking a bite out of their britches someday, maybe they'll finally understand what a foolish choice this is.