This week, an appellate judge on the Second Circuit rendered a long awaited decision stating a project to scan books to provide digital searching of the contents of those books is a fair use.  In other words, companies are now free scan copyright books, allow others to search them, and view the results on the computer without paying for it.

While I think this is a marvelous search tool (I use it all the time), I think the judge missed the boat.  The decision focused on the fact that the displayed search results only shows “text snippets” rather than the entire book.  The judge then concluded that this would not hurt authors because you can’t cobble together enough of these snippets to reconstruct the book.  In other words, the search results were like “teasers” or a movie trailer that would entice someone to purchase the entire book.  As stated in the opinion, “a reasonable factfinder could only find that [this project] enhances the sales of books to the benefit of copyright holders.”

Benefit copyright holders?  I’m not so sure. As an author, I can understand the argument that this in essence provides free publicity for an author (which is very hard to come by these days). The problem is that contrary to the judge’s position that “the scans do not replace the books,” in most cases it really does replace the book.  For example, when I wrote “Why Has America Stopped Inventing?” I did much of my research using Internet searches.  While this helped me locate important source material, in most cases, the snippet was all that I needed.  I did purchase many books, but I was content with using the snippet for many other cases. True, I would likely have never even come across the snippet without the Internet, but my use of the snippet surely didn’t help out sales of these authors.

For fiction books, the judge may have a point.  Who would read two lines of a John Grisham novel and feel like they’d had a good read?  But a high school student needing a quote from Catch 22 is more than likely to get a snippet, rather than reading the whole book.

Perhaps we should let authors opt in to whether they want their books scanned or not. At least that would give them a choice.  For some, I suspect they would want the publicity. For others, I’m sure they wouldn’t. But at least give the author a choice in the matter.