This source is a blog which highlights several opinions on the decision. Some agree with my thesis while others disagree. I will use the supporters as examples to prove my thesis and will rebut the opinions of the dissenters. William Patry offers the opinions in the first two blog entries on the page. Both are highly critical of the Court's decision in favor of Google. First he points out that if you tally up the factors, Google received none and Perfect 10 received three, according to him. This argument is highly flawed because it was actually 2-1 in favor of Google according to the case. The second argument stated that the Court erred in its assessment of Google as "consumptive." The case has a good explanation for why this is their opinion and it seems valid.
John Ottaviani argues that using Copyright Law from the 1970s is not very relevant for this type of technologically-based case. He fails to realize that it is the concept of what is copyright that has carried over for that long of a time. Copyright law would have changed had it not been working. They also used contemporary examples in the decision. C.E. Petit argued against the first and fourth factors of Fair Use. She argues that they are very similar and will almost always favor the same side. According to her, the judge used the same facts for each factor and that they are likely being double counted. She is probably right that these factors overlap and more than they should. They should, however count for more because of how important they are to Fair Use. The similarity was likely on purpose.
Martin Schwimmer wrote, "The thought occurs as I read this section that Google makes this go away by cropping a corner off the thumbnail (or perhaps reproduces thumbs using sepia tone)." This is amusing, but at the same time, it makes a very good point. Much of the argument centers on whether or not the thumbnails are the same as the image. Removing a corner would actually resolve this argument. It would not change the function of the thumbnails. This shows me that the argument is being over thought and that thumbnails shouldn't be considered the same. If such a small alteration can change an opinion that greatly, then it should not even need to be done.