Procedural Fair Use
41 Pages Posted: 21 Mar 2006 Last revised: 18 Nov 2012
Date Written: March 1, 2006
This article explores the advantages of opt-out plans, and identifies a critical shortcoming in Copyright's doctrine of Fair Use. The discussion is fueled by a current controversy: In December of 2004, Google, Inc. announced its plan to digitally scan thousands of copyrighted books as part of a massive new digital indexing service. Hedging against possible litigation, Google provided a free and easy opt-out procedure for authors who didn't want their books scanned. Despite this measure, two major authors' groups have sued Google, claiming the opt-out plan imposes an unfair burden. This article explores the fairness of established opt-outs in contract law, privacy law, and class action rules. Further, the discussion explores how Copyright already places similar burdens upon authors. Ultimately, these lessons are applied to the Google Book Search problem, and an important new Fair Use consideration is identified.
Keywords: Fair Use, Opt Out, Google, Opting Opt, Opt-out, Opt in, Opt-in, Procedural Fair Use, Mattioli
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