From: Kevin Smith <[log in to unmask]>
Date: Mon, 16 Dec 2013 13:24:24 +0000

[MOD NOTE:  With this message, let's declare this thread at least
temporarily exhausted.  Many good points have been made, and so we
should stop lest, as Kevin suggests, tiresomeness beings to set in!]

I understand that this debate is tiresome to many list members and
clogs the list with a topic irrelevant to the original purpose of the
list.  In truth, I myself am coming to think of this exchange the way
some people regard Internet porn -- I know I should look away, but
cannot resist the fascination.  My justification is that Sandy seems
to believe that he can win an argument by simply repeating his error
often enough, and I want there to be a regular voice reminding list
members that he does not understand fair use.

I will confine myself to one point.  Fair use is common law.  Even
when it was included in the 1976 Copyright Act, Congress explicitly
said that it should continue to evolve and adapt to circumstances,
which is what common law does.  This is the fundamental point that
Sandy cannot grasp.  The article by Judge Leval was published almost a
quarter of a century ago.  The Texaco case was decided 20 years ago,
and since then it has been distinguished, criticized or cited in
dissent in court opinions more often than it has been followed as
precedent.  It is hardly a "landmark." Fair use has moved on, guided
by many different courts over those two decades (as multiple people
have shown on this list, this Second/Ninth dichotomy is a figment of
Sandy's imagination).  It seems that Judge Leval has also moved on.
It is time for Sandy to move on.

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: Thu, 12 Dec 2013 12:16:49 -0600

Kevin seems not to remember that in one landmark fair-use case in the
Second Circuit, American Geophysical Union vs. Texaco, where Judge
Leval was the district court judge making the initial ruling the
appeals judge who wrote the majority opinion explicitly addressed the
issue of social utility and found it NOT to justify a finding of fair
use:

"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 xerographyŠ, 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."

This is a direct application of Leval's theory of transformative use,
and the Second Circuit was consistent in applying this theory in
fair-use cases (including the Grateful Dead poster case) up until the
HathiTrust decision by Judge Baer, who decided instead to cite the
Ninth Circuit decisions as his main precedents, and then was followed
by Judge Chin.  I'd like to ask Kevin how he squares these two
decisions with the explicit rejection of "social utility" in the
Texaco case.

Sandy Thatcher


From: Kevin Smith <[log in to unmask]>
Date: Wed, 11 Dec 2013 13:37:04 +0000

This message is such a marvelous illustration of the very theory Zick
Rubin was employing -- the theory that cognitive dissonance results
when a cherished ideology encounters facts that seem to disprove it --
that I would like to think that it was written in a humorous vein.
Alas, I cannot think that, because it is so consistent with previous
statements of Sandy's closely held but thoroughly erroneous ideology
about fair use.

I certainly will not acknowledge that the GBS decision represents bad
law, although I cannot speak for the "many people" like me.  Judge
Chin cited precedents from multiple jurisdictions, and did the
analysis that was called for in the case.  In what sense, other than
contradicting Sandy's fantasy about what fair use should be but is
not, is it "bad?"  It is certainly good for all of those people who
benefit from the Google Books Search; it was precisely those benefits
that swayed Judge Chin.  And that was quite correct; if Sandy would
examine the history of fair use with an open mind he would find that
the "social utility" that he scorns has always been at the heart of
that doctrine.  Fair use exists to prevent the copyright monopoly from
being used, as monopolies often are, to choke off cultural and
economic progress.  So Judge Chin look at exactly the correct facts in
his analysis.

Facts are the real sticking point here.  As I have pointed out before,
Sandy wants clear rules and dividing lines about fair use, but that is
simply not how the analysis works.  Each case regarding fair use is
analyzed according to its own specific facts and circumstances; the
four fair use factors are really just guidelines for a factual
inquiry.

It is his unwillingness to acknowledge this fundamental aspect of
copyright law that leads Sandy into assertions about "simple truth"
and conflations of unrelated assertions.  The GBS decision, for one
thing, is wholly within the jurisdiction of, and founded on precedents
from, the Second Circuit.  So invoking the reversal rate of the Ninth
Circuit (the huge majority of reversed cases were not about copyright
at all, of course) is irrelevant.  Certainly the Grokster case was

reversed, but on an entirely different set of facts, especially in
regard to the nature of the use, than are present in the GBS case.  It
is an important part of Sandy's fair use ideology to assert that the
Ninth Circuit is the evil force that is blocking the realization of
some fair use paradise, but those stubborn factual analyses, which
have led multiple circuits into similar "error," keep getting in the
way.

It is indeed true that I was surprised by the way the arguments in the
GSU appeal proceeded, although it is important to point out that that
appeal has not yet succeeded or failed -- there has been no ruling as
yet from the Eleventh Circuit.  In any case, the source of my surprise
had little to do with differences about how the fair use analysis
worked; the judges were not interested at all in the ideological line
Sandy would like to draw.  In my opinion the judges on that panel
simply had not fully grasped the facts of the case, which explained
their inability to see the reasons that the copy shop cases are
inapposite.

It is worth remembering that in earlier iterations of his rigid and
simplistic theory of fair use, Sandy often evoked Judge Pierre Leval
as one of his "prophets." Yet Judge Leval was part of the Second
Circuit Court of Appeals panel that remanded the case back to Judge
Chin with pretty clear instructions that the GBS project was likely to
be fair use. The unfortunate truth that Zick Rubin was pointing us to
is that when such prophets let down their true believers, those
believers seldom give in to reason; they are more likely than ever to
double down on their ideological fantasies.

Kevin