From: Kevin Smith <[log in to unmask]>
Date: Tue, 27 Aug 2013 12:24:19 +0000

Once you state "the Campbell paradigm" in this way, as the "creation
of new meaning," you demonstrate why there is not really the radical
split between the Ninth and Second Circuit that you assert.  In the
HathiTrust case, the Judge believed he was following Bill Graham,
citing as a conclusion from that case that "a transformative use can
also be one that serves an entirely different purpose."  Consider the
fair use argument for copying to provide access for the visually or
print disabled.  If a work is published only in inaccessible formats,
does not this act of copying into a form that can be read by assistive
software create meaning where there previously was none?  It is
precisely in this notion of fair use -- the creation of new meaning,
often through re-purposing of the work -- that the essential unity
amongst the circuits is most evident.

Kevin L. Smith, M.L.S., J.D.
Director, Copyright and Scholarly Communication
Duke University Libraries
Durham, NC  27708
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-----Original Message-----

From: Sandy Thatcher <[log in to unmask]>
Date: Sat, 24 Aug 2013 22:49:35 -0500

The Bill Graham Archive case fits squarely within the Campbell
paradigm, in my view, since the use of the images was not just for a
different purpose but clearly involved the creation of new meaning. In
the Second Circuit the HathiTrust case stands out as the only example
of the Ninth Circuit approach. Yes, the Fourth Circuit followed the
Ninth Circuit's reasoning, but it remains to be seen whether other
courts will follow suit on more than the district level and whether
the Second Circuit appeals court will accept the HathiTrust judge's
interpretation. It will be an especially interesting outcome if Pierre
Leval is on the appeals panel himself. Leval is one of the appeals
judges that overruled the district judge in the Authors Guild suit
against Google in granting class action status, also in the Second
Circuit, requiring the district judge to address the issue of fair use
first. Since Google's fair-use argument depends on the Ninth Circuit,
the further outcome in this case will tell us much about where the
Second Circuit is headed. Of course, it also needs to be admitted that
the makeup of the Supreme Court has changed significantly since the
Campell court made its decision in 1994. My bet, nevertheless, is that
a "transformative use" case will reach the Supreme Court again, sooner
or later--unless Congress decides to change the law in the meantime.

Sandy Thatcher


At 11:04 PM -0400 8/24/13, LIBLICENSE wrote:
>
> From: Kevin Smith <[log in to unmask]>
> Date: Thu, 22 Aug 2013 14:09:44 +0000
>
> I don't believe the distinction here is as clear as Sandy would have
> it.  First, there are evolving interpretations of transformative fair
> use in the Second Circuit; the Bill Graham Archive case, in addition
> to the HathiTrust decision, is an example of this evolution.  Second,
> other circuits have also endorsed the idea that re-purposing a work
> can be transformative.  In the 4th Circuit, for example, we have the
> iParadigms case involving Turnitin, which found that simply building a
> database of texts in order to detect plagiarism was a transformative
> use.
>
> Also, there are recent district court cases in North Texas and in
> Minnesota (which are not in either the 9th or 2nd circuits) that apply
> this same analysis.  For more information see my discussion of these
> cases, which involving using unlicensed copies of journal articles by
> lawyers representing patent applicants, at
> http://blogs.library.duke.edu/scholcomm/2013/08/19/feelin-stronger-every-day/.
>
> This interpretation is a growing consensus in the circuits, so in my
> opinion it is not an issue that the Supreme Court is likely to
> intervene on.  The Campbell case was a new pointer from the Supremes,
> but fair use has always been allowed to evolve as befits the common
> law doctrine it has been for most of its history.
>
> Kevin L. Smith, M.L.S., J.D.
> Director, Copyright and Scholarly Communication Duke University
> Libraries Durham, NC  27708 [log in to unmask]