In December, novelist Susan Cheever, a member of the Authors Guild, published Just Google ‘thou shalt not steal, an article suggesting that there’s some kind of official word limit, or percentage limit, to material you can copy in order for it to qualify as fair use. She writes:
“The Copyright Statute…includes a ‘fair use’ clause, so that a few lines or phrases of a writer’s work can be used as illustration by someone else….The amount of words that constitute fair use varies according to court case. *At present, it is 400 words*. …Google cites ‘fair use,’ but it isn’t using 400 words; it plans to digitize whole libraries and make them available piece by piece.” (Emphasis added.)
Even this small quotation from Cheever’s article fundamentally misstates copyright law and misleads readers about Google Book Search.
First, no such 400-word rule exists. Indeed, in some cases courts have ruled that copying and republishing the entire work is fair use. (You can read about one such court decision here.)
Second, Google does not show more than two or three sentences without the author’s permission. And that’s not all. If a copyright holder chooses not to participate in Google Book Search, not a single word from the book will appear in any searches…
Reading the above post as a nonlawyer, I myself see several points. (1) This is another example of some writers serving as unwitting propagandists for publishing interests without knowing the full facts. Often the Authors Guild doesn’t help. Somehow I don’t think that it’s quite as trusting of publishers on writers-rights issues as on the fair use issue. (2) Part of the problem with copyright law is that it’s so bloody complicated–too frequently more of an enricher of lawyers than writers. (3) In fairness to Ms. Cheever, she would appear not to be lying in her Newsday article, but rather misinformed. If you look at the comments on the Lessig post, you’ll see rreference to 400-word limits mentioned by book publishers and others. But that’s not the same as the actual law.
The DRM angle: You bet that the fair use issue complicates matters. What happens if, in place of constructive dialogue between publishers and fair use advocates, we have inflexible quotation limits enforced by technology with possible help from the DMCA. DRM sytems need to be flexible to allow for different situations, including those created by intrabook hyperlinking.
Related: Susan Cheever on her father.