Using a variety of technological innovations, Google became a multi-billion dollar content-delivery business without owning or licensing much of the content that it uses. Google’s principal justification for why this strategy does not contravene the intellectual property rights of the copyright owners is the doctrine of fair use. However, over the last several years, some copyright owners began to push back and challenge Google’s strategy. Much of this litigation presents the courts with something of a conundrum. On the one hand, it is beyond dispute that Google’s services have great social utility. By organizing and making accessible an enormous volume of information on the Internet, Google facilitates broad access to a diverse array of material, a core value of the First Amendment. At the same time, Google’s actions do not always fit comfortably within traditional notions of fair use. In this respect, the Google cases present an opportunity to explore the relationship between copyright and the First Amendment; a subject that has received inadequate attention in the courts, and particularly the Supreme Court. How the apparent tension between the marketplace of ideas and the commercial marketplace is resolved may have significant impact on the development of Internet-based services designed to facilitate access to information, and this subject is the focus of this iBrief.
David Kohler, This Town Ain’t Big Enough for the Both of Us—Or Is It? Reflections on Copyright, the First Amendment and Google’s Use of Others’ Content, 6 Duke Law & Technology Review 1-25 (2007)