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)…

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...