Mathematical Certainty in Fair Use Analyse

The Fair Use analysis in Field was a good synthesis of the analyses that had preceded it. The business rules were extracted from that analysis and used to contruct the  Additional discussion of the analysis and the implications of the heuristics articuluated there are discussed . The court began by addressing the four factors outlined in section 107 of the Copyright Act: Factor 1 - Purpose of Use, Factor 2 - Nature of Copyrighted Work, Factor 3 - Relative Amount ,Factor 4 - Market Effect .

 In looking at the first factor, the court analogized to the facts in Kelly v. Arriba, in which a visual search engine's use of copyrighted photographs to improve access to information on the internet was a transformative fair use based on the original function of the work, which was artistic in nature. Since Field claimed that he created his poems to serve an artistic function, Google's use added something new, and did not merely supercede the original work.

 As for what's added, the first item is that Google's cache enables users to access content when the original page is inaccessible. Second, it allows users to detect changes that have been made to a particular page over time. Third, Google's highlighting feature allows users to understand why a result was responsive to their query. Fourth, the size of the 'Cached' link and header on the cached page serve notice to the user that this use is a complement, and not a substitute for, the original page. Fifth, websites have the ability to prevent Google from caching their pages, and the fact that billions of websites choose to have their pages cached indicates that they do not view the cache copies as substitutes for their pages.

 For the second factor, the Court again invoked transformation and noted that when a use is found to be transformative, that the second factor is not terribly significant in the overall fair use balancing. Here the court noted that, assuming the poems in question were creative, that this factor weighed only slightly in Field's favor. A pattern emerges in looking at the third factor, where yet again the Court invokes transformation and notes that when a use is found to be transformative, and the work can otherwise be viewed free of charge, (like a TV show or a website), then this factor will be neutral even if all of the work is copied.