Ann Droid wants to publish a bestseller. So she sits down with an advance copy of Harry Potter and the Order of the Phoenixthe fifth bookand proceeds to transcribe. She verbatim copies all the chapter titlesfrom Chapter 1 (Dudley Demented) to Chapter 38 (The Second War Begins). She copies verbatim the topic sentences of each paragraph, starting from the first (highly descriptive) one and continuing, in order, to the last, simple one (Harry nodded.). She then paraphrases the rest of each paragraph. She rushes the competing version to press before the original under the title: Ann Droids Harry Potter 5.0. The knockoff flies off the shelves. J.K. Rowling sues for copyright infringement. Anns defenses: But I wrote most of the words from scratch. Besides, this was fair use, because I copied only the portions necessary to tap into the Harry Potter fan base.
Obviously, the defenses would fail.
Defendant Google Inc. has copied a blockbuster literary work just as surely, and as improperly, as Ann Droidand has offered the same defenses.