From: Sandy Thatcher <[log in to unmask]>
Date: Thu, 12 Dec 2013 12:37:56 -0600

To answer Micah's last question, I'd say it's out of line with the
Supreme Court's landmark 1994 decision in Campbell vs. Acuff-Rose,
which was the first case to cite Judge Leval's theory in its full
two-pronged scope, one prong having to do with the different purpose,
the other having to do with value added by way of new meaning,
interpretation, etc. The Ninth Circuit chose to ignore the second
prong entirely and even went so far as to claim that the repurposing
was even more radically transformative than parody, thereby in my
opinion reducing its position to a reductio ad absurdum. The Ninth
Circuit is attributing creativity to a computer algorithm, whose
application is no more creative than pushing the button on a
photocopier is. Judge Chin uses the sleight of hand of referring to
the creativity that the Goiogle indexing "allows"--but that is a much
different thing than saying that the act in question itself is
creative. By Chin's theory, the copying in the GSU case should qualify
as fair use also, since it "allows" for new interpretation, etc. But
Judge Newman in the Texaco case explicitly rejected this "social
utility" argument as applying to photocopying, and so did Judge Evans.
So I fail to see how Google indexing via computer algorithm qualifies
as an act of human creativity.

Sandy Thatcher

P.S. I should add that in the Perfect 10 case the Ninth Circuit also
rejected the idea that there was any real market for the Perfect 10
images, even though Perfect 10 already had in hand a licensing
agreement with a company that was going to sell those images for
cell-phone use. I suggest those who want to see a much better argument
for "functional" use as fair use go read the section of Nimmer on
Copyright where the argument for functional use is tied directly to
the fourth "market" factor, following a suggestion made by Judge
Richard Posner (who decided the Aimster fair-use case).


> From: "Zeller, Micah" <[log in to unmask]>
> Date: Wed, 11 Dec 2013 20:20:26 +0000
>
> The Supreme Court overturns decisions from the Ninth Circuit "more
> times (and often unanimously) than any other Circuit" in part because
> (1) the Court reverses more than it affirms (72% rev'd in OT12, 63% in
> OT11, 72% in OT10, 79% in OT09), (2) unanimous decisions are the most
> frequent split (47% over last four terms), and (3) the Court takes
> more cases from CA9  than any other circuit (between 18-32% of all
> cert grants each year between 2009-2012). And the reversal rate for
> the Ninth isn't particularly anomalous (CA9 cases represented 18% of
> merits opinions and 21% of total reversals over last four years).
> (stats from SCOTUSblog -
> http://www.scotusblog.com/reference/stat-pack/).
>
> So though the Ninth has a reputation for being a historical outlier
> and lab of novel legal theories, there are quite a few factors in play
> (like collegiality within a bench, makeup of SCOTUS, classes of cases,
> etc.) and I think Sandy's characterization below oversimplifies
> things. It's also not quite right to call Grokster a case about fair
> use. The Supreme Court didn't address the doctrine; neither did the
> District Court, the Court of Appeals, or either court on remand.
>
> But I don't mean to nitpick. What I'd like, and what I hope would be
> constructive to the discussion, is if Sandy would explain what he
> means by saying the Authors Guild v. Google decision is "bad law." The
> law changes, as he'd certainly agree, and courts interpret fair use
> differently today than they did twenty years ago (Netanel's "Making
> Sense of Fair Use" gives an excellent summary of recent empirical
> studies on fair use case law, tracing the rise of the transformative
> use paradigm - http://law.lclark.edu/live/files/9132-lcb153netanelpdf).
> This is true in both the Ninth and Second Circuits.
>
> In the Second, Judges Leval, Cabranes, and Parker remanded the
> original Google cause to the district court for consideration of fair
> use, which their colleague Judge Chin subsequently found. Cabranes and
> Parker are part of the panel that heard and will decide the HathiTrust
> appeal. Judge Parker's opinion for the court in Prince v. Cariou
> explicitly accepts the interpretation of fair use that Sandy calls
> "repurposing only" ("The law imposes no requirement that a work
> comment on the original or its author in order to be considered
> transformative, and a secondary work may constitute a fair use even if
> it serves some purpose other than those (criticism, comment, news
> reporting, teaching, scholarship, and research) identified in the
> preamble to the statute." 714 F.3d 694, 706 (2d Cir. 2013)).
>
> Sandy's correct that the test for transformative use is contentious,
> and that a difference in purpose isn't the same as transformation.
> Whether it's "bad" law or not, it's been settled for years that
> "repurposing only" can be held as transformative. So where is the
> Ninth Circuit's interpretation out of line with other appellate
> authority?
>
> Micah
>
> Micah Zeller
> Copyright & Digital Access Librarian
> Washington University in St. Louis
> [log in to unmask]