From: Sandy Thatcher <[log in to unmask]>
Date: Sun, 14 Oct 2012 07:34:41 -0500

This issue is far from being settled. Here is what I posted as a
comment to a story on the decision at InsideHigherEd:

The larger significance of this decision is that it occurred in the
Second Circuit whose jurisprudence on fair use, I have argued, is
different in some key ways from that of the Ninth Circuit on which
Judge Baer relied so heavily in writing his opinion.

The Second Circuit, as did the Supreme Court also in the landmark 1994
Campbell v. Acuff-Rose case, took its cue on "transformative use" from
an article written by Judge Pierre Leval in the Harvard Law Review in
1990 where the emphasis was placed on the value added by a later
author to an earlier author's work--an obviously creative process that
is truly substantively "transformative." The 1994 case involved a
parody, an obvious instance of making creative use of an underlying
work in creating a new work.

A previous case in the Second Circuit, which Judge Baer cites in
defense of his interpretation of "transformative use," involved the
reproduction of posters of The Grateful Dead in a historical work,
which used them in a different context for a different purpose (and,
in that sense, repurposed them) but clearly in a way that involved
human creativity in the direct act of reproduction.  Contrast this act
of creative transformation with the line of cases decided in the Ninth
Circuit where the mechanism involved in transformation is a
computerized process that is not in itself creative at all: it simply
performs a process guided by a computer program to create a searchable
index of content, whether images or text. The result of that process
might lend itself to creative uses thereafter--like text mining, which
is one of the uses sanctioned by Judge Baer's decision, or creative
work by a blind student--but the process itself is in no way itself
creative.

This makes all the difference in the world for interpreting fair use.
As Judge Newman famously said in the Texaco suit involving
photocopying, whatever "social utility" photocopying may have, it is
not fair use as traditionally understood because it involves no value
added in a creative way. (Note that in this sense Judge Evans in the
GSU case agreed with the Texaco judge, not finding the GSU copying to
be transformative.) Why is this important? It is because the
functionalist interpretation that Judge Baer has further reinforced in
this decision muddies the concept of fair use and puts us on a
slippery slope to further uses justified as involving repurposing.

The Association of Research Libraries, in its Code of Best Practice
for Fair Use released in this past year, has indeed taken a further
step on this slippery slope by claiming that use of any kind of work
in the classroom except textbooks that are sold directly for such use
is "transformative" because the purpose of the use is different from
that originally intended by the author. Thus, if a teacher decides
that his or her pedagogical purpose can best be served by assigning a
whole novel to the class, it is fair use, according to the ARL, to
reproduce multiple copies of the entire novel for the class with no
permission required from the author or publisher. The same applies to
all scholarly publications like journal articles and monographs that,
according to the ARL, are not written with the student in the
classroom as the primary market; hence it is fair use to reproduce
them in full, if the pedagogical purpose so warrants.

The ARL also claims that older scholarly works are being used for a
different purpose in the present because they have become of merely
"historiographical" interest as time passes, and so they may be
reproduced also without permission because of this new purpose for
which they are being used. Obviously, this stretching of the meaning
of fair use can result in the destruction of entire secondary markets
for scholarly journal articles and monographs, not to mention trade
books of all kinds, which would be disastrous for university presses.
So, it does indeed make a real difference how fair use is understood.

I have no objection myself to the practical consequences of Judge
Baer's decision as it affects what the HathiTrust is currently doing,
but I believe it is a serious mistake to justify these activities
under the concept of fair use; they could readily be warranted under
other provisions of the law as special exemptions for libraries,
adding to what Sec. 108 already provides, without adding yet more
confusion to the meaning of fair use. That Judge Baer could not
"imagine" an interpretation of fair use under which these activities
could not be sanctioned just shows how unimaginative he is--and how
far the pernicious interpretation of fair use promulgated by the Ninth
Circuit has affected other courts. If this case is appealed, the
outcome might be different, if only because Judge Leval now serves on
the Second Circuit Court of Appeals. For a more extended argument
about this issue, see my article:
http://www.psupress.org/news/pdf/Transformative%20Use.pdf.

P.S. My bet is that Judge Leval will agree with Judge Chin on this issue.

Sandy Thatcher

****

From: Ann Okerson <[log in to unmask]>
Date: Sun, 14 Oct 2012 06:06:38 -0400

See James Grimmelmann's Oct.13th Publishers Weekly posting about Judge
Baer's ruling.

http://blogs.publishersweekly.com/blogs/PWxyz/2012/10/13/hathitrust-a-landmark-copyright-ruling/

As everyone wonders about [if] the connection between this and the
Google case, note this excerpt:

"Google: The HathiTrust opinion does not technically dispose of the
case against Google. Google is a commercial company, and it shows
snippets of books in its search results. But neither of these factors
seems crucial to the  opinion, which rests more on his conclusion that
digitization for search transforms the underlying books without
cutting into the market for them. Not only will Judge Baer's opinion
be a persuasive precedent on this point, it also creates an awkward
situation for his colleague Judge Chin, who will naturally be

reluctant to reach a conflicting decision in what is essentially the
same case."