From: "Hansen, Dave" <[log in to unmask]>
Date: Wed, 11 Dec 2013 15:25:40 +0000

It's a hard thing to speculate about the parties' motivations. The AG
may have some rational reasons to appeal; if nothing else, a 2d
circuit appeal is a relatively cheap option with a potentially high
payoff. Judge Chin has already awarded Google costs, and Google has
until today to file a motion for attorneys' fees. If they do and the
number is as high as we all expect, I think we'll get a better sense
of how strong AG's ideological motivation is, versus its willingness
to negotiate with Google.

Also, Grokster wasn't really about fair use at the 9th circuit level;
it was about secondary liability and whether Grokster had any
substantial non-infringing uses. The Supreme court talked a little bit
about fair use in the context of format shifting, but 9th circuit
didn't even use the term 'fair use' once in its opinion in that case.
In A&M Records v. Napster, where the 9th circuit did consider the fair
use argument, the court concluded that the users' actions were not
fair use. The 9th circuit got it right on fair use, but not on
secondary liability (in Grokster).

As a percentage, the 9th circuit's reversal rate is lower than that of
several other circuits (e.g., the 6th circuit, Federal circuit). I
wouldn't put much stock in the idea that the 9th circuit is
chronically wrong--especially for copyright cases. The 9th circuit is
by far the most experienced with these cases. In 2012, about 1/3 of
all federal copyright cases were filed in the 9th Cir., which handled
about three times as many copyright cases as any other circuit.

Dave

----------
David R. Hansen
Digital Library Fellow
UC Berkeley School of Law
[log in to unmask]
http://law.berkeley.edu/librarycopyright.htm

-----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]