From: Kevin Smith <[log in to unmask]>
Date: Wed, 11 Dec 2013 13:37:04 +0000

This message is such a marvelous illustration of the very theory Zick
Rubin was employing -- the theory that cognitive dissonance results
when a cherished ideology encounters facts that seem to disprove it --
that I would like to think that it was written in a humorous vein.
Alas, I cannot think that, because it is so consistent with previous
statements of Sandy's closely held but thoroughly erroneous ideology
about fair use.

I certainly will not acknowledge that the GBS decision represents bad
law, although I cannot speak for the "many people" like me.  Judge
Chin cited precedents from multiple jurisdictions, and did the
analysis that was called for in the case.  In what sense, other than
contradicting Sandy's fantasy about what fair use should be but is
not, is it "bad?"  It is certainly good for all of those people who
benefit from the Google Books Search; it was precisely those benefits
that swayed Judge Chin.  And that was quite correct; if Sandy would
examine the history of fair use with an open mind he would find that
the "social utility" that he scorns has always been at the heart of
that doctrine.  Fair use exists to prevent the copyright monopoly from
being used, as monopolies often are, to choke off cultural and
economic progress.  So Judge Chin look at exactly the correct facts in
his analysis.

Facts are the real sticking point here.  As I have pointed out before,
Sandy wants clear rules and dividing lines about fair use, but that is
simply not how the analysis works.  Each case regarding fair use is
analyzed according to its own specific facts and circumstances; the
four fair use factors are really just guidelines for a factual
inquiry.

It is his unwillingness to acknowledge this fundamental aspect of
copyright law that leads Sandy into assertions about "simple truth"
and conflations of unrelated assertions.  The GBS decision, for one
thing, is wholly within the jurisdiction of, and founded on precedents
from, the Second Circuit.  So invoking the reversal rate of the Ninth
Circuit (the huge majority of reversed cases were not about copyright
at all, of course) is irrelevant.  Certainly the Grokster case was
reversed, but on an entirely different set of facts, especially in
regard to the nature of the use, than are present in the GBS case.  It
is an important part of Sandy's fair use ideology to assert that the
Ninth Circuit is the evil force that is blocking the realization of
some fair use paradise, but those stubborn factual analyses, which
have led multiple circuits into similar "error," keep getting in the
way.

It is indeed true that I was surprised by the way the arguments in the
GSU appeal proceeded, although it is important to point out that that
appeal has not yet succeeded or failed -- there has been no ruling as
yet from the Eleventh Circuit.  In any case, the source of my surprise
had little to do with differences about how the fair use analysis
worked; the judges were not interested at all in the ideological line
Sandy would like to draw.  In my opinion the judges on that panel
simply had not fully grasped the facts of the case, which explained
their inability to see the reasons that the copy shop cases are
inapposite.

It is worth remembering that in earlier iterations of his rigid and
simplistic theory of fair use, Sandy often evoked Judge Pierre Leval
as one of his "prophets." Yet Judge Leval was part of the Second
Circuit Court of Appeals panel that remanded the case back to Judge
Chin with pretty clear instructions that the GBS project was likely to
be fair use. The unfortunate truth that Zick Rubin was pointing us to
is that when such prophets let down their true believers, those
believers seldom give in to reason; they are more likely than ever to
double down on their ideological fantasies.

Kevin

-----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



> From: Kevin Smith <[log in to unmask]>
> Date: Mon, 9 Dec 2013 17:26:57 +0000
>
> I am sure many of you have seen reports and commentary about Judge
> Chin's decision in the lawsuit pursued by the Author's Guild against
> Google over the Google Books Project.  But this comment by Zick Rubin
> takes a different perspective that I thought would interest list
> members:
>
> http://www.zickrubin.com/GoogleBookstheAuthorsGuildandCognitiveDissona
> nce.html
>
> Zick is a Boston-based attorney who represents publishers, authors,
> and universities, especially in copyright and contract matters.  He is
> himself a member of the Author's Guild, largely because of his
> writings during a previous career as a professor of social psychology
> at Harvard and Brandeis.
>
> Kevin
>
> Kevin L. Smith, M.L.S., J.D.
> Director, Copyright and Scholarly Communication Duke University
> Libraries Durham, NC  27708 [log in to unmask]