Thoughts on Perfect 10 v. Google

Tidbits from Google v. Perfect 10:

1. Footnote 8 may be of later interest. The court distinguishes Google’s comprehensive search engine that incidentally indexes some sites hosting infringing images from “a company whose business is based on providing scenes from copyrighted movies without authorization,” given that the latter is not proceeding in the spirit of good faith and fair dealing that underlies fair use. Google Book Search could be deemed more like MovieSceneSearch.com than Google Images.

2. Then, the court says that a search engine may be more transformative than a parody, because a parody generally serves the same entertainment purpose as the original work but a search engine is a completely different type of work. Surely that language couldn’t possibly come back to haunt defendants making critical use of fictional works, especially in an environment when many copyright owners are willing to license just about anything, including parodies. This is another problem with trying to jam every fair use into the “transformative” category – it encourages unidimensional reasoning, so one kind of fair use has to step on others to prove its special worth. At this point, can we admit that “transformative” is the new “fair,” and try to find some other definitions of what we value in unauthorized uses?