From: Sandy Thatcher <[log in to unmask]>
Date: Tue, 10 Dec 2013 09:32:23 -0600

No special psychological explanation is needed for the Guild's
decision to appeal. The simple truth, which many people like Kevin
fail to recognize, is that the decision represents bad law.  Let me
remind people that the Supreme Court has overturned decisions from the
Ninth Circuit, where this particular interpretation of "transformation
use" as repurposing only (there is no value added to the work itself,
but only the social utility of using the work in different ways), more
times (and often unanimously) than any other Circuit  in recent
memory. Perhaps some of you will recall the Supreme Court's unanimous
decision in the Grokster fair-use case, overturning the Ninth
Circuit's ruling: http://en.wikipedia.org/wiki/Grokster. There is even
conflict now within the Ninth Circuit over cases involving
interpretation of "transformative use."  Unlike Mr. Zick, who thinks
this case is obviously over, there is still a lot of distance to
travel before we get a definitive resolution, and it is by no means
obvious to some lawyers that the appeal will inevitably fail. A lot of
people thought the appeal of the GSU case would fail, too, including
Kevin.

Sandy Thatcher



> From: Kevin Smith <[log in to unmask]>
> Date: Mon, 9 Dec 2013 17:26:57 +0000
>
> I am sure many of you have seen reports and commentary about Judge
> Chin's decision in the lawsuit pursued by the Author's Guild against
> Google over the Google Books Project.  But this comment by Zick Rubin
> takes a different perspective that I thought would interest list
> members:
>
> http://www.zickrubin.com/GoogleBookstheAuthorsGuildandCognitiveDissonance.html
>
> Zick is a Boston-based attorney who represents publishers, authors,
> and universities, especially in copyright and contract matters.  He is
> himself a member of the Author's Guild, largely because of his
> writings during a previous career as a professor of social psychology
> at Harvard and Brandeis.
>
> Kevin
>
> Kevin L. Smith, M.L.S., J.D.
> Director, Copyright and Scholarly Communication
> Duke University Libraries
> Durham, NC  27708
> [log in to unmask]