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
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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.
>
>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