From: Kevin Smith <[log in to unmask]>
Date: Tue, 27 Oct 2015 00:03:00 +0000

Please read my post more carefully, Joe.  I am not saying anything
like what you attribute to me.  Of course established business can
enter new areas.  And such business are often capable of great
creativity. Those points are obvious, and irrelevant to what I was
arguing, which was about fair use and the exclusivity of copyright.
In the context of fair use, a rights holder should not be able to
undermine a transformative use simply by asserting that the use usurps
a potential market they might decide later to exploit.  In other
words, one business should not be able to use  copyright to circumvent
the creativity you speak so highly of by another business.  Copyright
is, by its nature, anti-competitive, and this careful delineation of
what markets copyright can and cannot foreclose to others is all about
keeping that anti-competitive Impact within reasonable bounds. Mead
could not have developed Lexis Nexis, nor Lockhead Dialog, if a
competitor could get a court to shut down the new, creative business
by claiming that the market for that new idea was exclusively theirs,
whether or not they had tried to enter it, or even thought about it.

Fair use exists to keep copyright from overreaching, so as to protect
some cherished values.  One is free speech, and another is free market
competition.  Rights holders, of course, want the most expansive
market exclusivity they can get, since no established business really
wants competition.  But when it comes to fair use, the courts have
engaged in a careful delimitation of what markets really should be
reserved to the rights holder and which ones are, at least, more
amenable to the creativity of a fair user.  In those markets the
rights holder is still free to enter if they wish, they just might
have to compete on an even basis, the way other businesses must.

Kevin L. Smith, M.L.S., J.D.
Director, Copyright and Scholarly Communications
Duke University Libraries



> On Oct 26, 2015, at 7:25 PM, LIBLICENSE <[log in to unmask]> wrote:
>
> 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