From: Kevin Smith <[log in to unmask]>
Date: Tue, 27 Oct 2015 00:20:20 +0000

My opinion, of course, is not very important here, but I think I would
agree that in the case of digital course readings, which is a very
different set of circumstances from the Google Books case, the
secondary market should count against fair use, at least when it is
being used by the rights holder. But that does not guarantee that the
use is not fair.  Fair use involves assessing all four factors.  In
the original GSU decision, Judge Evans also held that the particular
secondary market at issue did count against fair use, but her
evaluation of the four factors together still detected a significant
space for fair use.  That is how the analysis is supposed to work.

If Judge Leval told you that he shared that opinion due to the risk of
a legitimate market being usurped, that is completely consistent with
the analysis he employed in the Google Books case.

Kevin

Kevin L. Smith, M.L.S., J.D.
Director, Copyright and Scholarly Communications
Duke University Libraries



> On Oct 26, 2015, at 7:39 PM, LIBLICENSE <[log in to unmask]> wrote:
>
> From: Sandy Thatcher <[log in to unmask]>
> Date: Sun, 25 Oct 2015 19:05:09 -0500
>
> So, Kevin, do you believe that the pedagogical use of scholarly
> monographs (or novels) in the classroom is a "transformative" use
> because the audience is different from the one for which the works
> were originally created and therefore classroom use is for a different
> purpose? Or do you think that the publishers' market for these works,
> even if it is considered secondary, should count against the use being
> transformative because the copies digitized by the libraries (or,
> heck, even the Google copies some have received gratis) substitute for
> the originals in that market? Judge Leval thinks the latter, or so he
> told me a few years ago, but people like Jonathan Band (whose argument
> the ARL and other library organizations adopted in the Code of Best
> Practices) do not.
>
> Sandy Thatcher
>
>
>> From: Kevin Smith <[log in to unmask]>
>> Date: Fri, 23 Oct 2015 12:41:28 +0000
>> Just a couple of points in response to Mark's comments.
>>
>> First, it is strange to suggest, as I think Mark does, that we cannot
>> analyze the social benefit of a putative fair use (which is what the
>> US as singular or plural is about) because Google has a commercial
>> purpose, albeit the indirect one of improving their algorithm.  It is
>> an axiom in copyright law that we look at the use rather than the user
>> when evaluating a fair use.  After all, 2 Live Crew was trying to sell
>> CDs when they made a parody of "Oh Pretty Woman," Dorling Kindersley
>> was trying to sell books when they used Grateful Dead posters to
>> illustrate a time line, and Sony was selling video recorders when they
>> were sued by Universal Pictures.  In each case, the use was fair, even
>> though the user had some commercial intent.
>>
>> The two key questions Judge Leval uses in his analysis of Google Books
>> make this clear -- Is the use transformative and will it substitute
>> for the original.  If the answers here are yes and no, even a
>> commercial entity should be entitled to assert fair use.
>>
>> This brings me to the point about potential markets.  Mark's
>> suggestion, and the argument made by the Authors Guild, that Google
>> should not be allowed to create an index of books because that
>> potential market should be reserved for rights holders is a common
>> straw man; it is a circular assertion that would vitiate fair use if
>> courts adopted it, which is why it has been rejected many times.
>> Whatever "potential market" might mean, it cannot refer to a market
>> that is well outside the scope of the business of the rights holder
>> and that, in many cases (including the Google Books case) the rights
>> holder likely would never have conceived of if the alleged infringer
>> had not shown the possibility.  The value of the transformative
>> analysis in fair use jurisprudence is that it is calibrated to this
>> very question -- is the market being exploited here one that should
>> reasonably be reserved for the rights holder, or is it something new
>> and creative that makes a different contribution from that made by the
>> rights holder.  When there is such a creative and transformative use,
>> the argument Mark makes for disallowing it is a recipe for cultural
>> stagnation and at odds with the fundamental purpose of copyright law.
>>
>> In this case we are seeing a continuation of the convergence among the
>> Circuit Courts of Appeal around how to handle fair use.  Contrary to
>> the assertion of a split in the Circuits, recent cases show the
>> development of a consistent and reliable analysis of transformative
>> fair use that supports the progress of knowledge and creative.  Rights
>> holders are entitled to reasonable markets for their works, but not to
>> entitle to foreclose every creative possibility in the name of
>> "potential" markets.
>>
>> Kevin L. Smith
>> Director, Copyright & Scholarly Communication
>> Duke University Libraries