Is the argument that Google seeks to make money (presented in both complaints for McGraw-Hill and Author’s Guild) effective considering the plaintiffs also seek to make money through exercising their copyrights or engaging in other deals? Generally, how should plaintiffs approach arguments in their complaints that may also undermine their own claims?

I’m not really sure how this would undermine their claims within the scope of copyright law. As owners of the copyright, plaintiffs are entitled to profit off of the works, and indeed the level of profit they may receive (or lose) strengthens their claim on fair use. (The fourth fact the courts look at is “effect on the works value”)The profit that Google stands to make likewise stregnthens plaintiffs’ case, as the “purpose and character” of their use is also looked at. In this mushy test, the more commercial a use, the less it looks like fair use.

I think that the question here is less one of weakening their own claims and more one of proper audience. Even though to the layperson the profit motive may appear to weaken McGraw-Hill’s case, this impact would not really be seen on a judge or a properly-instructed jury. Which brings us into the tangential issue of how much the court of public opinion matters.

In my view, public opinion is going to be dealt with through press releases and news stories. How many lay people (OK, excluding my husband) read court documents? I don’t think a perceived double-standard rises to the level required to be posted on the Smoking Gun. So, for the audience that really matters, this strategy seems sound.

Even so, the plaintiffs do emphasize the educational nature of their business, de-emphasizing their status as a for-profit corporation. In my opinion, this evidences the fact that overall impression matters even outside the legal issues themselves and the facts directly relevant to them. Judges and juries are still human, and psychology will always be a part of brief-writing.

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