From: Joseph Esposito <[log in to unmask]>
Date: Sun, 25 Oct 2015 20:18:50 -0400

Gosh, Kevin. Strong stuff. New business opportunities have to be in
line with what the current business owner is doing already? The
business owner would not have conceived of the new business activity
without an outsider showing the way? But how about all the cases where
the very opposite happened. To take an example of a service familiar
to people on this list, let's recall the origin of Lexis Nexis, the
brainchild of Mead paper products. Worried about how computers would
eventually erode sales of paper, Mead came up with an online service.
That's hardly the same things as selling notebooks in stationery
stores to schoolkids. Or there is Dialog, incubated by accident inside
Lockheed as an attempt to find a cheaper way to build airplane wings.

I really don't know what the law is about fair use and copyright and I
don't care to opine on it. What I do find hard to take is the
assumption that the people who run established businesses are somehow
devoid of creativity and imagination. Look around you: the modern
world is a monument to the creative use of capital married to the
human imagination. As Paul Simon said, These are the days of miracle
and wonder./This is the long distance call.

Joe Esposito


On Sun, Oct 25, 2015 at 9:17 AM, LIBLICENSE <[log in to unmask]> wrote:
>
> 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
>
>
> -----Original Message-----
> 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