From: Sandy Thatcher <[log in to unmask]>
Date: Mon, 15 Oct 2012 17:31:42 -0500
Widespread, really? If Kevin would have read the whole article, he
would have known that I discuss the Turnitin case in the Fourth
Circuit in detail and cite it as the one case outside the Ninth
Circuit (before Judge Baer's decision) to follow its reasoning. So,
where are all the other cases to justify calling this precedent
"widespread"? Please tell us where decisions have been made like this
in all the other circuits. Nimmer on Copyright follows the lead of
Judge Richard Posner in the Sixth Circuit in its idea of functional
repurposing, which is quite different from how the Ninth Circuit has
approached it, as I show in my article. Here, to give some sense of
how divorced the Ninth Circuit's conception is from common sense, is
this quote from one of its rulings:
"Indeed, a search engine may be more transformative than a parody
because a search engine provides an entirely new use for the original
work, while a parody typically has the same entertainment purpose as
the original work."
What the Ninth Circuit did was severely criticized by one of its own judges:
This line of cases transforming the common meaning of "transformative"
championed by Judge Leval into an all-purpose reading of "purpose" as
anything that makes a functionally different use of the copyrighted
work, however uncreative that use may be, offers a textbook example of
Georgia Harper's story about how judges approach fair use cases, by
making up their minds first about what benefits the public most and
then reasoning backward through the four-factor analysis to arrive at
that predetermined conclusion. (See Harper's "Google This!" at
(http://www.utsystem.edu/ogc/intellectualproperty/googlethis.htm.)
That this is indeed a fair charge to make against the Ninth Circuit is
confirmed by one of its own members, Judge Alex Kozinski, who accused
his fellow jurists in his dissent in Perfect 10 v. Visa International,
an extension of the Perfect 10 v. Google case, of subscribing to this
theory of what public policy requires: "(1) to promote the continued
development of the Internet and other interactive media [and] (2) to
preserve the vibrant and competitive free market that presently exists
for the Internet and other interactive computer services, unfettered
by Federal or State regulation." Judge Kozinski also reminded his
colleagues that it is the role of the legislature, not the judiciary,
to decide what U.S. public policy should be.
It is worth pointing out that the Ninth Circuit's rulings in general
have been out on a limb, and that the Supreme Court has unanimously
overturned its decisions ten times in a row. How this makes its
approach so solidly entrenched as a precedent is beyond me.
As for the Bill Graham case, it doesn't take any imagination to
understand that this fits squarely within the meaning of
"transformative" that I have argued, following Judge Leval, to be the
key. These were not images that were simply used to construct a
computerized index of thumbnails, as in the Kelly vs. Arriba case;
they were creatively and selectively used to make an argument in a
work of historical scholarship, which is what fair use has always, and
preeminently, been about. I doubt that my distinction would be seen
as "cramped and dated" by the Supreme Court, since it was that Court
that decided the crucial 1994 case involving parody, obviously a
creative reuse, using precisely this conception of what is
transformative. The Supreme Court has not yet been given the
opportunity to consider whether it will accept the Ninth Circuit's
different view. Given its frequent overturning of decisions from that
Circuit, I wouldn't be so confident that the Ninth Circuit's view will
ultimately prevail. It hardly qualifies as being "mainstream" yet.
Sandy Thatcher
At 4:07 PM -0400 10/15/12, LIBLICENSE wrote:
From: Kevin Smith <[log in to unmask]>
Date: Sun, 14 Oct 2012 21:02:59 +0000
In point of fact, and in spite of this ad hominem attack on Judge Baer,
this was an easy case. The idea that repurposing is an acceptable form of
transformative fair use is well accepted throughout the country, not just
in the Ninth Circuit. Judge Baer quite properly followed an important
precedent in the Second Circuit, the Bill Graham case, which simply cannot
support the murky distinction that Sandy wants to impose. And there is a
similar precedent in the Fourth Circuit -- the iParadigms case. So this
approach to transformation is rapidly becoming a prevailing approaching,
certainly in the Circuit Courts that have the most experience addressing
fair use.
Because we have these precedents from coast to coast, the ARL Code of Best
Practices in Fair Use for Academic and Research Libraries is right in the
mainstream. And Judge Baer's comment about not being able to imagine a
definition of fair use that would require him to rule against the
HathiTrust does not indicate a lack of imagination, it just shows that he
is following a developing line of precedent that is quite different from
the cramped and dated distinctions about fair use that Sandy advocates so
volubly but with little judicial support.
In light of the wide-spread precedents about transformative fair use, it
is actually Judge Evans in the GSU case who is out of the mainstream. She
found mostly fair uses even after holding that the activity was outside
her more restrictive definition of transformation, but I would expect the
defendants to use the appeal in that case to try to get a ruling more
consistent with the majority opinion in the federal courts. If the
Eleventh Circuit also accepts that transformative fair use can be founded
on a new purpose, the very narrow definition of "decidedly small" that she
imposed probably will give way to a more flexible "appropriateness"
standard.
Kevin L. Smith, M.L.S., J.D.
Director of Copyright and Scholarly Communications
Duke University
Perkins Library
Durham, NC 27708
[log in to unmask]
On 10/14/12 3:13 PM, "LIBLICENSE" <[log in to unmask]> wrote:
>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.
[SNIP]
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