From: Kevin Smith <[log in to unmask]>
Date: Wed, 28 Aug 2013 12:22:24 +0000

The purpose of fair use, and of copyright in general, of course, is
not to protect the investment of publishers.  What fair use is doing
in this environment is supporting needed competition for new markets.
It is not clear, from the perspective of authors or customers of
traditional publishers that they really are thinking beyond the
container, even if they attend panels on that topic.  For example,
restrictions on ILL that require libraries to print an article before
sending it to a recipient seem intent on reproducing the
inconveniences of print in the digital world.  So does a restriction
on an e-book to the alleged number of loans possible with a print
copy.  But while many publishers seem bound to the idea, and the
limitations, of the print container, fair use allows others to
experiment with new models.  No publisher, for example, would or could
create an index for 12 million digital books; protecting their
investment would prevent publishers from doing that, while fair use
has allowed (so far) the HathiTrust to provide such a service.  The
most likely beneficiaries of this freedom to experiment, in the world
of scholarship at least, are the academic authors who, after all, are
the intended beneficiaries of copyright.

Kevin L. Smith, M.L.S., J.D.
Director, Copyright and Scholarly Communication
Duke University Libraries
Durham, NC  27708
[log in to unmask]


-----Original Message-----

From: Joseph Esposito <[log in to unmask]>
Date: Mon, 26 Aug 2013 17:56:31 -0400

I don't want to address the copyright issues, but the notion that
something is transformative when it is used in a way in which it was
not originally intended really ties publishers to containers.

Meanwhile, every publishing conference has a panel on thinking beyond
containers.  The model, whether acknowledged or not, is the Disney
studio, which famously creates characters and then exploits them
across media, whether feature films, TV, home video, amusement park
rides, merchandise, etc.  In scholarly communications the number of
media platforms may be fewer, but the "intention" is the same.

Publishers invest in not only content but content capability.  Today's
article is tomorrow's component of a coursepack and may be the seed of
a book.  The practical effect of the notion that only what was
originally intended has protection is that publishers will declare
their intention to "transform" everything they create.  I am planning
to convert this liblicense post into a major motion picture.

What's so exasperating about these dead-end arguments about the
extension of fair use is that they are all backward-looking; most
critiques of publishing are about how publishers thought of themselves
twenty years ago.  How do we carve up the dead beast?  Better,  I
think, to nurture a new menagerie.

Joe Esposito


On Mon, Aug 26, 2013 at 5:20 PM, LIBLICENSE <[log in to unmask]> wrote:
>
> From: Sandy Thatcher <[log in to unmask]>
> Date: Sat, 24 Aug 2013 22:49:35 -0500
>
> The Bill Graham Archive case fits squarely within the Campbell
> paradigm, in my view, since the use of the images was not just for a
> different purpose but clearly involved the creation of new meaning. In
> the Second Circuit the HathiTrust case stands out as the only example
> of the Ninth Circuit approach. Yes, the Fourth Circuit followed the
> Ninth Circuit's reasoning, but it remains to be seen whether other
> courts will follow suit on more than the district level and whether
> the Second Circuit appeals court will accept the HathiTrust judge's
> interpretation. It will be an especially interesting outcome if Pierre
> Leval is on the appeals panel himself. Leval is one of the appeals
> judges that overruled the district judge in the Authors Guild suit
> against Google in granting class action status, also in the Second
> Circuit, requiring the district judge to address the issue of fair use
> first. Since Google's fair-use argument depends on the Ninth Circuit,
> the further outcome in this case will tell us much about where the
> Second Circuit is headed. Of course, it also needs to be admitted that
> the makeup of the Supreme Court has changed significantly since the
> Campell court made its decision in 1994. My bet, nevertheless, is that
> a "transformative use" case will reach the Supreme Court again, sooner
> or later--unless Congress decides to change the law in the meantime.
>
> Sandy Thatcher
>
>
> At 11:04 PM -0400 8/24/13, LIBLICENSE wrote:
> >
> > From: Kevin Smith <[log in to unmask]>
> > Date: Thu, 22 Aug 2013 14:09:44 +0000
> >
> > I don't believe the distinction here is as clear as Sandy would have
> > it.  First, there are evolving interpretations of transformative
> > fair use in the Second Circuit; the Bill Graham Archive case, in
> > addition to the HathiTrust decision, is an example of this
> > evolution.  Second, other circuits have also endorsed the idea that
> > re-purposing a work can be transformative.  In the 4th Circuit, for
> > example, we have the iParadigms case involving Turnitin, which found
> > that simply building a database of texts in order to detect
> > plagiarism was a transformative use.
> >
> > Also, there are recent district court cases in North Texas and in
> > Minnesota (which are not in either the 9th or 2nd circuits) that
> > apply this same analysis.  For more information see my discussion of
> > these cases, which involving using unlicensed copies of journal
> > articles by lawyers representing patent applicants, at
> > http://blogs.library.duke.edu/scholcomm/2013/08/19/feelin-stronger-every-day/.
> >
> > This interpretation is a growing consensus in the circuits, so in my
> > opinion it is not an issue that the Supreme Court is likely to
> > intervene on.  The Campbell case was a new pointer from the
> > Supremes, but fair use has always been allowed to evolve as befits
> > the common law doctrine it has been for most of its history.
> >
> > Kevin L. Smith, M.L.S., J.D.
> > Director, Copyright and Scholarly Communication Duke University
> > Libraries Durham, NC  27708 [log in to unmask]