Google, fair use, and the future of copyright

I'm happy to see that a court of appeals recently ruled that Google's use of thumbnail images in its image search is not a copyright violation. A different ruling would have made it impossible to create an image search tool as we are already used to having it.

I'm old enough on the internet to remember how the world wide web was like before Google, before Altavista, before Metacrawler. Finding something you didn't already know where it was located was basically impossible.You could stumble upon something useful by sheer dumb luck, just like clicking next blog on BlogSpot occasionally turns up something useful. The problem is that the chance of this being both useful and relevant to the problem at hand is infinitesimal at best.

If the previous ruling had been allowed to stand we had probably been forced back to a world without image search (at least as the American search engines are concerned). As usual, it all comes down to copyright and fair use. To me, there's no question that it's fair use when Google displays a thumbnail an inch wide of a book cover scan found on another site or a photograph someone posted. In the case of the book cover scan, I can't see any problems with reposting a full-size scan either, since all that does is market the book anyway. There's still a somewhat sliding scale here. There are, for instance, lots of sites distributing clip art and icons. These are images that probably aren't even as large as Google's thumb nails to begin with. Is it still fair use to display them as search hits? My answer would be yes: both since this is still free marketing for whomever posted the images to begin with and since making special allowances for very small images would simply not be worth the trouble (so what's "very small", exactly?).

I'm worried by the current trend curtailing fair use and increasing copyright reach. Personally, I'd like to see a reform that drastically shortens the length of copyright to a few years after publication. Even today, there are very few works that actually bring in any money after that time. By recognizing that, we would enrich the common culture available to everyone a lot without hurting short-term sales. I would also like to see blanket rules for "orphan works" (meaning works where the copyright holder can't be identified or located). It should be possible to reuse this kind of work without (as today), waiting until 70 years have passed after the author's death (or, for anonymous works, after publication).

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