BusinessWeek reports on a looming legal fight between Google and the Association of American University Presses over Google's plans to digitize copyrighted works for search purposes (A Google Project Pains Publishers):

So when Google announced last year that it planned to scan millions of the world's books and make them searchable online, many were thrilled. Many -- but not everyone, it turns out. In a May 20 letter, the Association of American University Presses (AAUP) blasts Google's so-called Print for Libraries program for posing a risk of "systematic infringement of copyright on a massive scale."....

But in December, Google dropped the equivalent of a heavy encyclopedia on the publishers. With no advance notification, the search provider unveiled its Print for Libraries program, aimed at digitizing public-domain books from the likes of the New York Public Library, Oxford University's Bodleian Library, and the libraries of Harvard and Michigan universities. Google said it would make available full versions of public-domain books online, while making only "snippets" of copyrighted text available.

NOT ALL ARE CONCERNED. But in addition to storing the digitized books on its own servers, Google said it would provide digital copies to the libraries. Publishers now worry Google might someday distribute digital copies of copyrighted books without their or the author's approval. The publishers argue that libraries have no legal right to digitize copyrighted material by handing it over to Google.

Under current law, Google sure is opening itself up to massive potential liability if it moves forward without getting permission. Google might claim fair use, but I rather suspect a court would disagree. Some say this is because fair use is rather murky. I say, this is because current copyright law is fundamentally flawed.

The right of reproduction shouldn't be a fundamental exlclusive right in the first place. The question should simply be whether Google is distributing the work to the public. If so, then we can apply a fair use analysis. The fact that Google digitizes the work shouldn't make a difference in the first place.

via John Palfrey