From: "Seeley, Mark (ELS-WAL)" <[log in to unmask]>
Date: Wed, 28 Oct 2015 13:09:13 +0000

Thanks Robert-- I have the article now and will read it with gusto
over the weekend-- of course I was a bit put off by language about
copyright such as "utilitarian tenant of maximizing net social
welfare" as I actually think that authors and publishers may
occasionally have a legitimate right to decide not to have their works
used in a particular context or by a particular party (so I tend to
think that the US copyright clause also has to be seen in relation to
the more European "authors rights" concepts, thinking back to the 18th
century)... but it does look like an interesting approach once you get
beyond the preamble...

Re Kevin's comments on commercial purpose, of course there are often
commercial purposes involved in uses ultimately found to be fair-- and
commercial publishers often rely on the principle directly (as in the
DK/Grateful Dead case).  However I do still find it odd that Google's
direct commercial purpose (building a massive
search/database/algorithm) gets such short shrift in the Authors Guild
decisions-- and that the research-oriented purposes are in the end
relatively speculative and "potential."  Why does the court provide so
much emphasis on this potential research purpose, when it decries the
potential market impact in its fourth factor analysis.  I believe the
burden of proof has been substantially mixed.

I agree that the Book project was socially useful-- for example it was
eye-opening to me to get a sense of the trade and local language book
publishing activities that Elsevier was engaged in in the first half
of the 20th century-- not something that the modern STM-oriented
company thinks about much.  But the question is whether, on balance,
it was more commercial than research-oriented, and I think it was more
commercial.  Obviously judges in the 2nd Circuit disagree with me!

Best,
Mark

Mark Seeley, Senior Vice President & General Counsel
Elsevier
225 Wyman Street, Waltham, MA 02451, USA
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-----Original Message-----
From: Robert Glushko <[log in to unmask]>
Date: Fri, 23 Oct 2015 13:01:15 +0000

I think that most of us agree that fair use in these mass digitization
cases is being asked to do a lot.  Personally, I think Google has
provided a massive public good with digitization at the same time as
they've given themselves a huge economic asset.  Very good point on
the lack of  privity between the economic purpose and the social
benefit Mark.

I very much support the Google Books project, and I think that the
outcome in the courts was right, even if I'm a bit skeptical of the
way they got to that outcome.  I'd highly suggest a paper from
iConference 2015 on this subject.  Full disclosure, it was written by
my partner as part of her dissertation on legal and organizational
issues around Hathitrust, but she's much smarter than I am so don't
let that dissuade you.  In it she develops a theory of "innovative
deviance" and applies it to the Hathitrust case.  It has really helped
my thinking on this complex topic.

https://www.ideals.illinois.edu/bitstream/handle/2142/73651/171_ready.pdf?sequence=2


-----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