Fair Use and the Antitrust Case in the Google Books Project

Posted by Social Science Research Network

Fair Use and the Antitrust Case in the Google Books Project Roberto Taufick (Stanford Law School)

Abstract: This paper addresses why, in our opinion, fair use is not clear in Google’s Book project as materialized so far and how come competitive concerns should trigger thorough scrutiny from antitrust authorities even if the project does not survive the fair use defense. It also suggests that Pierre Leval’s transformation test should be incorporated into the competitive prong of the fair use test — both because the more transformative the use, the less the secondary use competes and therefore conflicts with the copyright, and insofar as this shift would bring more relevance to the final part of section 107(1) of the Copyright Act in the first part of the test.