Re: Seems counterproductive...
USC 17 Ch. 1 Sec 107 (my comments are in italics):
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism no, comment no, news reporting no, teaching (including multiple copies for classroom use) no, scholarship no, or research no, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; Google is a for-profit entity using this to drive advertisement sales. No commentary is being made on the work itself, nor is the work being used to make a point of some kind. Fail on that point
(2) the nature of the copyrighted work; I assume most of these are non-fiction works, which I would expect to work in Google's favor on this point
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and Are we talking about a full duplication of the work, or just a section? While google only SHOWs a small section, they did have to make a full unauthorized copy for searching purposes. Fail on this point
(4) the effect of the use upon the potential market for or value of the copyrighted work. This is subjective, but If being able to read a section of a technical work online means I dont have to get the book itself, the argument could be made that it damages the market for the work. Others would say it grows the market by increasing exposure. Neither statement can be proven before the damage is done, but if it really does grow the market then Google should just be able to explain this to the authors and they'll jump on board (doing so would avoid wasting the courts time)!
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
It is interesting that Google wants hundrads of little suits, rather then keeping it all together in one class action suit. One would almost think that Google thinks that by making the authors each come after them individually they can increase the costs to the individual author to the point that it's cost-prohibitive to come after them.
That doesn't sound evil at all.
Whatever the outcome of the fair use defense, I think it is obvious that is is appropriate for this to be a class action suit.