Shorter Tim O'Reilly:

Google should be entitled to a free digital copy of every book in the library because its intentions, now and forever, can only be good.

OK, maybe a bit more. Here's the entire controversy, in sections of two of Tim's paragraphs:

What's causing all the fuss? Google has partnered with the University of Michigan, Harvard, Stanford, the New York Public Library and Oxford University. Google will scan and index their library collections, so that when a reader searches Google Print for, say, "author's rights," the results point to books that contain that term. In a format that resembles its current Web search results, Google will show snippets (typically, fewer than three sentences of text from each page of each book) that include the search term, plus information about the book and where to find it. Google asserts that displaying this limited amount of content is protected by the "fair use" doctrine under United States copyright law; the Authors Guild claims that it is infringement, because the underlying search technology requires a digitized copy of the entire work.

I'm with Google on this one. It would certainly be considered fair use, if, for example, I circulated a catalog of my favorite books, including a handful of quotations from each book that helps people to decide whether to buy a copy. In my mind, providing such snippets algorithmically on demand, as Google does, doesn't change that dynamic.

The clear problem with this analogy, and the entire point of the Authors Guild lawsuit, is that Tim either owns his favorite books from which he collected these snippets, or he wrote them down from another copy that was freely available for his perusal. He did not make a copy of the entire book to keep for himself just so he could create the snippets to put in his catalog.

I haven't heard anyone saying that Google's stated intentions for its digital library are not "fair use." That doesn't mean Google is entitled to a free copy of every book in the library so it can provide this service, even if it's willing to pay for the act of copying. If Google wants the books, Google has to buy the books. A book being unavailable or out-of-print does not obviate the copyright law.

Neither Google, nor any person or corporation, has any legal right to a digital copy of any book I own just because Google wants it and I'm willing to let it make the copy. I may have a "fair use" right to a digital copy of a book I own, for my own personal use, but that doesn't mean I can give the digital copy to anyone else without also giving them the original book. Any of these libraries may have the right to digitize copies of their collections, but if that's the case, the copies belong to them, not to Google or whoever made the copies.

If the New York Public Library can give its entire collection to Google, why can't I have it too? Does Google have more rights than I do, or is the library selling copies of books it owns illegally? If I'm willing to pay for the photocopying of an entire library book, can I have it? Why not, if Google can have any book it wants simply by digitizing it?

I don't think the Google Print plans violate "fair use" if Google actually owns copies of the books it wants to digitize. The plan, as stated by supporter Tim O'Reilly, is for Google to get illegal copies of books it does not own. Whether Google commits further copyright violations with those books is pretty much irrelevant.

(Via Daring Fireball's Linked List.)

Update: John is now pointing to Tim's own hosted copy of the op-ed piece, including one paragraph that got cut for length. Tim says the missing paragraph "seems to me to be the one that captures the heart of my support for Google's position":

Google is also solving a huge problem for the publishing industry. Because no one knows who owns many of the works in question, Google's innovative deal with libraries is the only practical approach. It sweeps up all the loose ends of forgotten rights and ignored works. As the public discovers the value of these works, publishers and authors are incentivized to track down and assert their ownership in order to opt-in to the revenue sharing offered by the Google Print service.

I'm not 100% fond of the argument that Google gets a free pass to violate copyrights because they can't find the copyright holders. I don't recall an exception in the law that says, "Well, we looked under the table and everything, but they weren't there, so I guess we can use it."

But again, Google's not planning on digitizing out-of-copyright or lost-copyright works. They're planning on making their own copy of every book in the library unless the authors or copyright holders take the affirmative step of contacting Google and saying "no." That turns copyright law on its head. If you want to use copyrighted material, you have to get permission from the owners. It cannot possibly work if the owners have to contact you to tell you not to do it.

How come Google, and only Google, is supposed to be exempt from this basic intellectual property requirement just because they say they're going to do something good with their unauthorized copies?

Updated yet again: I appreciate Sean's thoughtful comments (yes, plural - there's more than one response, Manila just lists them hierarchically, and they're all children of the first response). However, I'm a bit mystified as to why so many people are disagreeing in E-mail responses (and IMs), but not willing to post responses. Posting makes it easier on me because others might answer you before I do, and I'm all in favor of avoiding work.

If you want to respond in any fashion, please keep these points in mind:

• Google wants to get a full, free, digital copy of every book in the library. That is the point. What Google does with these copies could not be less relevant. Google's ownership of these copies is the entire point. Any response that does not address this point is equally irrelevant.
• Things that are not books are, to put it bluntly, not books. The ability to legally record a TV program off the air and keep a copy for yourself is not about copying books. Bring those points up when Google wants to copy TV programs (or whatever else it is you're arguing that is not a book).
• It's not legal to have an illegal copy of a book just because no one's reading it. Copyright is the right to copy, and it belongs to the author until he assigns it to someone else (like a publisher). The issue is not what Google does with its full, free, illegal copy of a book. The issue is that Google wants a full, free, illegal copy of every book. (I know that's repeating the first point, but really, most E-mail objections are from people who don't get this basic point.)

Now let's be careful out there.