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2006 Stan. Tech. L. Rev. 1 (2006)

handle is hein.journals/stantlr2006 and id is 1 raw text is: Stanford Technology Law Review No Analog Analogue: Searchable Digital Archives and Amazon's Unprecedented Search Inside the Book Program as Fair Use JONATHAN KERRY-TYERMAN* CITE AS: 2006 STAN. TECH. L. REV. 1 In October of 2003, online retailer Amazon launched a system for searching and browsing books called Search Inside the Book. For the first time, Amazon has given the public the ability to search and view the full text of over 120,000 books, using an index based on an archive that is easily the largest of its kind.2 Thus far, this ambitious system has met with mixed reviews, with copyright owners understandably more wary of it than the consuming public.3 This program is simply the latest in a long line of technological developments that challenge the existing balance between consumers and producers of copyrightable information. Like the Library of Congress or the Great Library of Alexandria before it, Search Inside the Book could serve in the digital age as a central index to all printed information, at long last providing the public access that stands at one end of the copyright bargain. Congress has recently recognized the importance of sheltering such indices, which would not survive without special protection, through favorable legislation and interpretation.4 Despite technological shortfalls in its implementation, then, the fair use affirmative defense to copyright infringement should be available to Amazon for Search Inside the Book. This paper begins with an overview of Amazon's prior experiments with e-books, the way in which the Search Inside the Book database is created, and how that database manifests itself to the Amazon user. Part II analyzes the Search Inside the Book program under current copyright law and concludes that the program does infringe copyrights in the indexed works. Part III argues that programs like Search Inside the Book, though infringing, actually serve the purposes of copyright law, and should not create liability for the providers of such programs. Finally, part IV applies the fair use doctrine to Search Inside the Book, assuming that the existing copy-protection measures are improved as indicated and ultimately finding this unconventional program protected as fair use. * Jonathan Kerry-Tyerman is a 2005 graduate of the University of San Francisco School of Law and currently works in publishing. He thanks Professors Josh Davis, Robert Talbot, and David Franklyn for their invaluable gudance and support in the writing of this Note, and Monique Webster for simply being invaluable. I Lisa Guernsey, In Amazon's Text Search, a Fzeld Dqyfor Book Bronsers, N.Y. TIMES, Nov. 6, 2003, at G7. 2 Gary Wolf, The Great bebrag ofAmazonia, WIRED, Dec. 2003, at 214. Throughout this paper, the term index' will be used to refer to search engines in general, and the Search Inside the Book engne in particular, whereas the term archive' will refer to the database of scanned or otherwise gathered material from which the index retrieves results. 3 Compare, e.g., id. (arguing that Search Inside the Book offers an unparalleled ability to discover books of interest), nith David K. Kirkpatnck, Amazon Olfer Worres Authors, N.Y. TIMES, Oct. 27, 2003, at C5 (questioning the right of publishers to authorize participation in the program and revealing shortcomings in Amazon's anti-copying measures). 4 See infra notes 236-240 and accompanying discussion. Copyright C 2006 Stanford Technology Law Review. AllRights Reserved.

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