From: Sandy Thatcher <[log in to unmask]>
Date: Fri, 23 Oct 2015 12:21:45 -0500

For another discussion of this topic, following a post by Rick
Anderson on The Scholarly Kitchen and including a long comment by me,
see:

http://scholarlykitchen.sspnet.org/2015/10/21/another-big-win-for-google-books-and-for-researchers/

As for Leval's analysis of derivative works, in saying that derivative
works generally have to do with change in form or format (like
translations or a movie based on a book), he conveniently ignores the
fact that the definition of derivative works in the Copyright Act
includes condensations and abridgments, which clearly do NOT involve
any such changes.

Sandy Thatcher



> 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)Š
>
> Mark Seeley
>
> Mark Seeley, Senior Vice President & General Counsel
> Elsevier
>
>
> -----Original Message-----
> From: Kevin Smith <[log in to unmask]>
> To: LibLicense-L Discussion Forum <[log in to unmask]>
> Date: Mon, 19 Oct 2015 13:15:01 +0000
>
> I have blogged about the ruling at:
>
> http://blogs.library.duke.edu/scholcomm/2015/10/18/google-books-fair-use-and-the-public-good/
>
> but wanted to make an additional observation.  As I read, and wrote
> about, Judge Leval's effort to distinguish a transformative use from
> the creation of a derivative work, I was forcefully remind of
> Professor L. Ray Patterson's frequently rejected distinction between
> using a work and using the copyright in the work.  Perhaps Patterson
> was not so off-the-wall as some thought, merely ahead of his time.
>
> Kevin L. Smith
> Director, Copyright & Scholarly Communication Duke University Libraries
>
> -----Original Message-----
> From: Ann Shumelda Okerson <[log in to unmask]>
> Date: Sun, 18 Oct 2015 19:51:23 -0400
>
> Reuters:  A U.S. appeals court ruled on Friday that Google's massive
> effort to scan millions of books for an online library does not
> violate copyright law, rejecting claims from a group of authors that
> the project illegally deprives them of revenue.
>
> The 2nd U.S. Circuit Court of Appeals in New York rejected
> infringement claims from the Authors Guild and several individual
> writers, and found that the project provides a public service without
> violating intellectual property law.
>
> We recommend the roundup from Gary Price of INFOdocket.  See for
> summaries, link to decision, commentary, and much more, at:
>
> http://www.infodocket.com/2015/10/16/ruling-just-in-google-book-scanning-project-legal-says-u-s-appeals-court/
>
> Any consequences, for example, for HathiTrust?  Maybe not...