Wouldn’t it be great if you could conduct a full text search of books the same way you search the web? You could sit down at your computer, type in some search terms, and get a list of every book at your local library that contains those terms–complete with brief excerpts that show the terms in context. It sounds like science fiction, but Google is now working to make it a reality. The company’s “Google Print” project aims to digitally scan and index every book ever written, creating a search engine for books that’s just as powerful as its industry-leading search engine for the web.

Unfortunately, the biggest obstacle Google faces isn’t technical, but legal: publishers are accusing Google of copyright infringement, and they’re demanding that the company get individual permission from each publisher before it scans their books. So far, Google has resisted their demands, insisting that building such a search engine is a legal fair use under copyright law. There’s a strong case for that position, and given the tremendous benefit Google Print would bring to library users everywhere, Google should stick to its guns. And the rest of us should demand that publishers not stand in the way.

People often assume that the law gives copyright holders unlimited control over their creative works. But a minute’s reflection shows that that’s not the case. Book reviews routinely include excerpts from the book being reviewed, computer users make backup copies of legally purchased software, and people record television shows for later viewing. The courts have upheld the right to make unauthorized copies in such cases under the doctrine of fair use.

Congress first formally approved the doctrine of fair use in 1976, but judges have recognized it for centuries. In the 1976 Copyright Act, Congress spelled out four factors that determine when an unauthorized copy is a fair use. The Supreme Court has held that the most important of these is “the purpose and character of the use.” In 1994, the Supreme Court ruled that this factor considers whether a new work “merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is transformative.”

In 2003, for example, the courts allowed an Internet search engine to display thumbnails of copyrighted images because the purpose of the thumbnails–allowing users to quickly find the images they were searching for–was very different from the purpose of the original images.

Viewed in that light, Google Print is clearly a transformative use. It has a “further purpose” and “different character” than the books it indexes. Its value is not derived from the creativity of book authors, but from the innovation of its engineers.

Another of the four factors for determining fair use is “the effect of the use upon the potential market for or value of the copyrighted work.” It seems clear that Google Print’s impact on the book market can only be positive for authors and publishers. Google print only shows brief excerpts of books when they are still under copyright. A user will have to obtain a printed copy of the book if she wishes to read more. That can only improve book sales.

The Constitution states that the purpose of copyright is to “promote the progress of science and the useful arts.” In other words, intellectual property serves to increase public access to creative works by giving authors the incentive to produce them. Given Google Print’s tremendous potential to help readers find the books they want to read, it is perverse to invoke copyright law to strangle the service in its cradle.

Tim Lee is science and technology editor of Brainwash and a staff writer at the Cato Institute. His website is binarybits.org.

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