From: Kevin Smith <[log in to unmask]>
Date: Fri, 23 Oct 2015 12:41:28 +0000
Just a couple of points in response to Mark's comments.

First, it is strange to suggest, as I think Mark does, that we cannot
analyze the social benefit of a putative fair use (which is what the
US as singular or plural is about) because Google has a commercial
purpose, albeit the indirect one of improving their algorithm.  It is
an axiom in copyright law that we look at the use rather than the user
when evaluating a fair use.  After all, 2 Live Crew was trying to sell
CDs when they made a parody of "Oh Pretty Woman," Dorling Kindersley
was trying to sell books when they used Grateful Dead posters to
illustrate a time line, and Sony was selling video recorders when they
were sued by Universal Pictures.  In each case, the use was fair, even
though the user had some commercial intent.

The two key questions Judge Leval uses in his analysis of Google Books
make this clear -- Is the use transformative and will it substitute
for the original.  If the answers here are yes and no, even a
commercial entity should be entitled to assert fair use.

This brings me to the point about potential markets.  Mark's
suggestion, and the argument made by the Authors Guild, that Google
should not be allowed to create an index of books because that
potential market should be reserved for rights holders is a common
straw man; it is a circular assertion that would vitiate fair use if
courts adopted it, which is why it has been rejected many times.
Whatever "potential market" might mean, it cannot refer to a market
that is well outside the scope of the business of the rights holder
and that, in many cases (including the Google Books case) the rights
holder likely would never have conceived of if the alleged infringer
had not shown the possibility.  The value of the transformative
analysis in fair use jurisprudence is that it is calibrated to this
very question -- is the market being exploited here one that should
reasonably be reserved for the rights holder, or is it something new
and creative that makes a different contribution from that made by the
rights holder.  When there is such a creative and transformative use,
the argument Mark makes for disallowing it is a recipe for cultural
stagnation and at odds with the fundamental purpose of copyright law.

In this case we are seeing a continuation of the convergence among the
Circuit Courts of Appeal around how to handle fair use.  Contrary to
the assertion of a split in the Circuits, recent cases show the
development of a consistent and reliable analysis of transformative
fair use that supports the progress of knowledge and creative.  Rights
holders are entitled to reasonable markets for their works, but not to
entitle to foreclose every creative possibility in the name of
"potential" markets.

Kevin L. Smith
Director, Copyright & Scholarly Communication
Duke University Libraries


-----Original Message-----
From: "Seeley, Mark (ELS-WAL)" <[log in to unmask]>
Date: Thu, 22 Oct 2015 12:18:13 +0000

I’ve also been thinking about the Authors Guild-Google decision and
posted a longer analysis and summary (comment) on my LinkedIn summary
section, but will summarize below.  As you might expect, I’m highly
concerned about the uncertainty introduced by the panel’s expansion of
‘transformative’ use from its origin as a part of the first factor
‘purpose of the use’ to a “suggestive symbol for a complex thought”
that runs through all four factors.

I think it is also odd for the court to equate a scholar’s potential
research purpose in the often-used “United States as plural vs
singular entity” example, with Google’s purpose in creating a huge
database of content.  In other words I don’t think Google started the
Book/Library project in order to do a specific scholarly research
project.  No doubt Google started it for a variety of reasons
(including socially useful purposes) -- but certainly one of those
reasons was to generally enrich and improve Google’s own search
algorithms by exposure to an ever increasing mountain of data.  That’s
a huge competitive advantage for Google which is extremely difficult
for any other technology vendor or rights organization to compete
with.

It also concerns me that the court pays so little attention to the
possibilities of potential markets for authors in these kinds of
secondary users—the literal language of 107 does actually use the word
“potential,” and in essence the court has put the burden of proof re
this aspect on the rights-holder.

Bottom line is that although the decision could be read narrowly
(specific and unusual fact circumstances, possible appeal, perhaps
differences in approach among the circuits), there’s no question that
this is a very influential jurist (Leval) and a very influential
court, and therefore very impactful.  I think it makes it very
difficult to articulate what "fair use" actually means in practice
(thinking about the reference in the Liblicense model agreement for
example)...

https://www.linkedin.com/profile/view?id=16596255&trk=hp-identity-name
(then go to the "summary" section)…

Mark Seeley

Mark Seeley, Senior Vice President & General Counsel Elsevier


-----Original Message-----
From: Kevin Smith <[log in to unmask]>
To: LibLicense-L Discussion Forum <[log in to unmask]>
Date: Mon, 19 Oct 2015 13:15:01 +0000

I have blogged about the ruling at:

http://blogs.library.duke.edu/scholcomm/2015/10/18/google-books-fair-use-and-the-public-good/

but wanted to make an additional observation.  As I read, and wrote
about, Judge Leval's effort to distinguish a transformative use from
the creation of a derivative work, I was forcefully remind of
Professor L. Ray Patterson's frequently rejected distinction between
using a work and using the copyright in the work.  Perhaps Patterson
was not so off-the-wall as some thought, merely ahead of his time.

Kevin L. Smith
Director, Copyright & Scholarly Communication Duke University Libraries