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
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-----Original Message-----
From: Sandy Thatcher <[log in to unmask]>
Date: Tue, 20 Aug 2013 21:27:47 -0500

Having read the complaint and the answer, I find this case interesting
chiefly because it is one more example of users pushing the envelope
of fair use by relying on the ever expansive and seemingly
all-encompassing notion of "transformative use."  (I have written
earlier about the ARL's Code of Best Practices using the concept to
justify the copying of entire books, except textbooks, for use in
e-reserve systems on the grounds that the books--including scholarly
monographs as well as trade books, fiction and nonfiction alike--were
not written primarily for use by students and therefore such use is a
"repurposing" of the original and hence "transformative.")

Here, as in the Ninth Circuit cases (like Kelly v. Arriba and Perfect
10 v. Google), the extra functionality provided by a computer search
program is said to be "transformative" and hence fair use.  This line
of argument is quite different from the one used by the Supreme Court
in the landmark 1994 Campbell v/ Acuff-Rose case (involving parody of
a popular song) because the latter, but not the former, involves
adding new meaning and value to the original, as traditionally a
scholar's use of quotations from earlier works in creating a new work
is "transformative" in just this way. The Ninth Circuit cases require
no human creativity to be involved in the act of fair use itself, only
the use of already created works for a new purpose. The Second Circuit
(where the Google mass digitization case is still being litigated) has
generally followed the Campbell approach, except for the very recent
HathiTrust decision, which is being challenged on just these grounds.
This new case is being brought in the First Circuit, whose record (if
any) in this interpretation of fair use I am unfamiliar with.

I suspect cases like this will continue to crop up until the Supreme
Court finally gets involved in settling the now conflicting
interpretations--or Congress decides to incorporate something relevant
in new copyright legislation.

Sandy Thatcher

P.S. I note, with interest, that the plaintiffs are being represented
by Bill Strong, author of The Copyright Book, one of the basic
guidebooks to U.S. copyright law, which went through four editions
from MIT Press.




> From: David Hansen <[log in to unmask]>
> Date: Tue, 20 Aug 2013 08:47:23 -0400
>
> I thought some of you might be interested in this lawsuit. I haven't
> seen it on the blogs anywhere yet -
>
> The gravamen on the complaint is that ISCE library has made
> unauthorized copies of the full text of plaintiff's works and has
> displayed/distributed them to ISCE members, who pay a fee for access
> (though it is dubbed a "membership fee" by ISCE) . In both the
> Plaintiffs' complaint and the Defendants' answer, it sounds as if
> there are some important access limitations: 1) the complaint
> acknowledges that only one person may access a work at a time, 2) in
> Defendants' answer, they claim that the full text can only be "checked
> out" for two hours at a time, and 3) the answer also claims that only
> two pages can be browsed at a time.
>
> This statement, I think, sums up what ISCE is trying to do "The ISCE
> Library is the closest possible digital analogue to a traditional
> specialized research library - providing temporary and controlled
> access one borrower at a time to lawfully-purchased copies of works
> maintained at the library's leased physical premises at AWS - and with
> a unique digital reference librarian." (Answer at para 15).
>
> The case raises a number of significant issues about the applicability
> of library privileges (Sec. 108), fair use (Sec. 107), first sale
> (Sec. 109)., 110 (non-profit educational displays), and Sec. 117
> (designed to facilitate necessary copying for computer programs). All
> are raised in the complaint or answer.
>
> Case citation and copies of the complaint and answer/counterclaims below:
>
> Harvard Business School Publishing Corp.,  John Wiley & Sons, Inc.,
> and Univ. of Chicago v.  Institute for the Study of Coherence and
> Emergence, Inc., et al., Case No. 13-cv-11450(GAO), (D. Mass., June
> 17, 2013)
>
> http://isce-library.org/suit.pdf
>
> http://isce-library.org/answer.pdf
>
> Does anyone know more about this?
>
> ----------
>
> David R. Hansen
> Digital Library Fellow
> UC Berkeley School of Law
> [log in to unmask]
> http://law.berkeley.edu/librarycopyright.htm