From: Sandy Thatcher <[log in to unmask]>
Date: Sun, 25 Oct 2015 20:26:06 -0500
The author of this paper makes an argument that is very similar to what I
argued in my comment to The Scholarly Kitchen's discussion of the ruling
when she observes:
HDL's full-text search functionality fails to meet the "adds
something new" requirement under traditional transformative use
analysis. . . . Removing original expression seems to be the precise
opposite of adding new expression. Moreover, while users and
data-miners may use the search results to subsequently generate new
meaning or message or create information, insights, or understandings with
respect to the original works, HDL's search service does not.
Full-text search is a technological tool, albeit one that has
tremendous value and use to society, as the courts noted, but it does not
transform the original works by adding something new as required by
existing fair use doctrine.The circuit court purported to corrected
[sic] the district court's analysis on this point when it noted that making
an'invaluable contribution to the progress of science and cultivation of
the arts" is not enough to transform an infringing use into a fair one. A
careful review of the circuit court's own reason, however, casts doubt on
whether it was ultimately able to push beyond the "value to society"
rationale in a meaningful, doctrinally-supported way.
I explained what the author calls this "miscalibration" between existing
copyright law and new technologically facilitated and potentially
infringing human behaviors in a somewhat different way by focusing on the
role of human creativity as the key to traditional understandings of fair
use:
My reading of Leval's original article led me to believe that the key to
understanding fair use is the act of human creativity involved in adding
new meaning and value to a previous work used for this transformative
purpose. That is exactly what was at issue in the Campbell case involving a
parody of a song. The Ninth Circuit, however, starting with cases involving
thumbnail images used to create an index, relied on a situation where the
index was created by an algorithm in a computer's operation, no more
creative than the act of pushing a button on a photocopy machine. In the
Texaco case, where Leval was the district court judge, the judge on the
appeals court who wrote the decision finding infringement specifically
acknowledged the "social utility" afforded by photocopying but argued that,
as a mechanical operation, it had "nothing to do" with fair use as
traditionally understood (because that traditional understanding always
focused on an act of human creativity).
The author of this paper, in her conclusion, speculates that the ruling
simply used the framework of existing fair-use jurisprudence to reach a
decision that was motivated by policy considerations:
This observation is further supported by an in-depth discussion and
analysis of mass digitization in the context of the recent HathiTrust
litigation and, in particular, the courts' reliance on existing
fair use doctrine to support what may have ultimately been a
policy-based decision.
In my comment in TSK I noted:
In the Perfect 10 case the dissenting judge took his colleagues on the
Ninth Circuit to task for taking it upon themselves to decide whether the
"social utility" of something should be used to create public policy, since
that is usually the role of a legislative body like Congress.
Georgia Harper once famously observed in her article "Google This!" that
what is at stake in any dispute about fair use is really an assessment of
"overall social utility," and that the explanation of a court's decision in
terms of the four factors is really so much window-dressing for a decision
reached on other grounds. It would appear that the Second Circuit now has
done just that, following the Ninth Circuit's lead.
Sandy Thatcher
From: Robert Glushko <[log in to unmask]>
Date: Fri, 23 Oct 2015 13:01:15 +0000
I think that most of us agree that fair use in these mass digitization
cases is being asked to do a lot. Personally, I think Google has
provided a massive public good with digitization at the same time as
they've given themselves a huge economic asset. Very good point on
the lack of privity between the economic purpose and the social
benefit Mark.
I very much support the Google Books project, and I think that the
outcome in the courts was right, even if I'm a bit skeptical of the
way they got to that outcome. I'd highly suggest a paper from
iConference 2015 on this subject. Full disclosure, it was written by
my partner as part of her dissertation on legal and organizational
issues around Hathitrust, but she's much smarter than I am so don't
let that dissuade you. In it she develops a theory of "innovative
deviance" and applies it to the Hathitrust case. It has really helped
my thinking on this complex topic.
https://www.ideals.illinois.edu/bitstream/handle/2142/73651/171_ready.pdf?sequence=2
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