From: Kevin Smith <[log in to unmask]>
Date: Thu, 29 Aug 2013 12:20:24 +0000

The thing about Texaco case is that in the 20 years since it was
decided, courts have criticized or distinguished it (from the matter
they were considering at the time) nearly as often as they have
followed it.  The Circuit in which it has been distinguished most
often is, not surprisingly, the Second Circuit.  So I doubt that it is
accurate to call Texaco a "landmark" case.

Kevin L. Smith, M.L.S., J.D.
Director, Copyright and Scholarly Communication
Duke University Libraries
Durham, NC  27708
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-----Original Message-----

From: Sandy Thatcher <[log in to unmask]>
Date: Tue, 27 Aug 2013 23:29:00 -0500

The answer to your question, in my opinion, is "no." Certainly, there
is great social utility in providing access to the print or visually
disabled, and the Chafee Amendment was added to the copyright act to
help bring that about. In my view, this is the way such social utility
should be realized, by specific and targeted amendments, not by an
ever expanding extension of fair use that eventually renders the idea
so vague as to be useless. Just making copyrighted material accessible
adds no new meaning to the material itself, it merely facilitates the
use of the material by more people.

The point was best made by the judge who wrote the majority opinion in
the landmark Texaco case:

"We would seriously question whether the fair use analysis that has
developed with respect to works of authorship alleged to use portions
of copyrighted material is precisely applicable to copies produced by
mechanical means. The traditional fair use analysis, now codified in
section 107, developed in an effort to adjust the competing interests
of the authors - the author of the original copyrighted work and the
author of the secondary work that 'copies' a portion of the original
work in the course of producing what is claimed to be a new work.
Mechanical 'copying' of an entire document, made readily feasible by
the advent of xerography . . . , is obviously an activity entirely
different from creating a work of authorship. Whatever social utility
copying of this sort achieves, it is not concerned with creative
authorship (italics added).

The last sentence here could just as well apply to digitization for
accessibility as it did to photocopying in the Texaco case.

Sandy Thatcher


At 10:23 PM -0400 8/27/13, LIBLICENSE wrote:

From: Kevin Smith <[log in to unmask]>
Date: Tue, 27 Aug 2013 12:24:19 +0000

Once you state "the Campbell paradigm" in this way, as the "creation
of new meaning," you demonstrate why there is not really the radical
split between the Ninth and Second Circuit that you assert.  In the
HathiTrust case, the Judge believed he was following Bill Graham,
citing as a conclusion from that case that "a transformative use can
also be one that serves an entirely different purpose."  Consider the
fair use argument for copying to provide access for the visually or
print disabled.  If a work is published only in inaccessible formats,
does not this act of copying into a form that can be read by assistive
software create meaning where there previously was none?  It is
precisely in this notion of fair use -- the creation of new meaning,
often through re-purposing of the work -- that the essential unity
amongst the circuits is most evident.

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: 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