From: "Zeller, Micah" <[log in to unmask]>
Date: Wed, 11 Dec 2013 20:20:26 +0000

The Supreme Court overturns decisions from the Ninth Circuit "more
times (and often unanimously) than any other Circuit" in part because
(1) the Court reverses more than it affirms (72% rev'd in OT12, 63% in
OT11, 72% in OT10, 79% in OT09), (2) unanimous decisions are the most
frequent split (47% over last four terms), and (3) the Court takes
more cases from CA9  than any other circuit (between 18-32% of all
cert grants each year between 2009-2012). And the reversal rate for
the Ninth isn’t particularly anomalous (CA9 cases represented 18% of
merits opinions and 21% of total reversals over last four years).
(stats from SCOTUSblog –
http://www.scotusblog.com/reference/stat-pack/).

So though the Ninth has a reputation for being a historical outlier
and lab of novel legal theories, there are quite a few factors in play
(like collegiality within a bench, makeup of SCOTUS, classes of cases,
etc.) and I think Sandy’s characterization below oversimplifies
things. It’s also not quite right to call Grokster a case about fair
use. The Supreme Court didn’t address the doctrine; neither did the
District Court, the Court of Appeals, or either court on remand.

But I don’t mean to nitpick. What I’d like, and what I hope would be
constructive to the discussion, is if Sandy would explain what he
means by saying the Authors Guild v. Google decision is “bad law.” The
law changes, as he’d certainly agree, and courts interpret fair use
differently today than they did twenty years ago (Netanel’s “Making
Sense of Fair Use” gives an excellent summary of recent empirical
studies on fair use case law, tracing the rise of the transformative
use paradigm – http://law.lclark.edu/live/files/9132-lcb153netanelpdf).
This is true in both the Ninth and Second Circuits.

In the Second, Judges Leval, Cabranes, and Parker remanded the
original Google cause to the district court for consideration of fair
use, which their colleague Judge Chin subsequently found. Cabranes and
Parker are part of the panel that heard and will decide the HathiTrust
appeal. Judge Parker's opinion for the court in Prince v. Cariou
explicitly accepts the interpretation of fair use that Sandy calls
"repurposing only" ("The law imposes no requirement that a work
comment on the original or its author in order to be considered
transformative, and a secondary work may constitute a fair use even if
it serves some purpose other than those (criticism, comment, news
reporting, teaching, scholarship, and research) identified in the
preamble to the statute." 714 F.3d 694, 706 (2d Cir. 2013)).

Sandy’s correct that the test for transformative use is contentious,
and that a difference in purpose isn't the same as transformation.
Whether it's "bad" law or not, it's been settled for years that
"repurposing only" can be held as transformative. So where is the
Ninth Circuit's interpretation out of line with other appellate
authority?

Micah

Micah Zeller
Copyright & Digital Access Librarian
Washington University in St. Louis
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-----Original Message-----

From: Sandy Thatcher <[log in to unmask]>

Date: Tue, 10 Dec 2013 09:32:23 -0600

No special psychological explanation is needed for the Guild's
decision to appeal. The simple truth, which many people like Kevin
fail to recognize, is that the decision represents bad law.  Let me
remind people that the Supreme Court has overturned decisions from the
Ninth Circuit, where this particular interpretation of "transformation
use" as repurposing only (there is no value added to the work itself,
but only the social utility of using the work in different ways), more
times (and often unanimously) than any other Circuit  in recent
memory. Perhaps some of you will recall the Supreme Court's unanimous
decision in the Grokster fair-use case, overturning the Ninth
Circuit's ruling: http://en.wikipedia.org/wiki/Grokster. There is even
conflict now within the Ninth Circuit over cases involving
interpretation of "transformative use."  Unlike Mr. Zick, who thinks
this case is obviously over, there is still a lot of distance to
travel before we get a definitive resolution, and it is by no means
obvious to some lawyers that the appeal will inevitably fail. A lot of
people thought the appeal of the GSU case would fail, too, including
Kevin.

Sandy Thatcher