If Google, instead of using the captured information to provide excerpts to point users to the original source, provided full text of articles directly to the users, I think no one would argue that the money Google spent to build such a system would be grounds for excusing the overt theft of the material.

The real question should focus directly on the use of the copyrighted materials. Is it “fair use”? Given today’s technology, I would argue that it is just as valid as the “Index to Legal Periodicals” was back in the days when I went to law school.

But Google needs to be mindful that fair use is based on its roles as a finding aid and not a delivery mechanism for the content itself. The movement of search engines to providing answers to questions by extracting information from the original sources in lieu of (or even if it is in addition to) pointing the seeker to the source raises troubling questions.