From: Kevin Smith <[log in to unmask]> Date: Thu, 29 Aug 2013 12:20:24 +0000 The thing about Texaco case is that in the 20 years since it was decided, courts have criticized or distinguished it (from the matter they were considering at the time) nearly as often as they have followed it. The Circuit in which it has been distinguished most often is, not surprisingly, the Second Circuit. So I doubt that it is accurate to call Texaco a "landmark" case. Kevin L. Smith, M.L.S., J.D. Director, Copyright and Scholarly Communication Duke University Libraries Durham, NC 27708 [log in to unmask] -----Original Message----- From: Sandy Thatcher <[log in to unmask]> Date: Tue, 27 Aug 2013 23:29:00 -0500 The answer to your question, in my opinion, is "no." Certainly, there is great social utility in providing access to the print or visually disabled, and the Chafee Amendment was added to the copyright act to help bring that about. In my view, this is the way such social utility should be realized, by specific and targeted amendments, not by an ever expanding extension of fair use that eventually renders the idea so vague as to be useless. Just making copyrighted material accessible adds no new meaning to the material itself, it merely facilitates the use of the material by more people. The point was best made by the judge who wrote the majority opinion in the landmark Texaco case: "We would seriously question whether the fair use analysis that has developed with respect to works of authorship alleged to use portions of copyrighted material is precisely applicable to copies produced by mechanical means. The traditional fair use analysis, now codified in section 107, developed in an effort to adjust the competing interests of the authors - the author of the original copyrighted work and the author of the secondary work that 'copies' a portion of the original work in the course of producing what is claimed to be a new work. Mechanical 'copying' of an entire document, made readily feasible by the advent of xerography . . . , is obviously an activity entirely different from creating a work of authorship. Whatever social utility copying of this sort achieves, it is not concerned with creative authorship (italics added). The last sentence here could just as well apply to digitization for accessibility as it did to photocopying in the Texaco case. Sandy Thatcher At 10:23 PM -0400 8/27/13, LIBLICENSE wrote: From: Kevin Smith <[log in to unmask]> Date: Tue, 27 Aug 2013 12:24:19 +0000 Once you state "the Campbell paradigm" in this way, as the "creation of new meaning," you demonstrate why there is not really the radical split between the Ninth and Second Circuit that you assert. In the HathiTrust case, the Judge believed he was following Bill Graham, citing as a conclusion from that case that "a transformative use can also be one that serves an entirely different purpose." Consider the fair use argument for copying to provide access for the visually or print disabled. If a work is published only in inaccessible formats, does not this act of copying into a form that can be read by assistive software create meaning where there previously was none? It is precisely in this notion of fair use -- the creation of new meaning, often through re-purposing of the work -- that the essential unity amongst the circuits is most evident. Kevin L. Smith, M.L.S., J.D. Director, Copyright and Scholarly Communication Duke University Libraries Durham, NC 27708 [log in to unmask] -----Original Message----- From: Sandy Thatcher <[log in to unmask]> Date: Sat, 24 Aug 2013 22:49:35 -0500 The Bill Graham Archive case fits squarely within the Campbell paradigm, in my view, since the use of the images was not just for a different purpose but clearly involved the creation of new meaning. In the Second Circuit the HathiTrust case stands out as the only example of the Ninth Circuit approach. Yes, the Fourth Circuit followed the Ninth Circuit's reasoning, but it remains to be seen whether other courts will follow suit on more than the district level and whether the Second Circuit appeals court will accept the HathiTrust judge's interpretation. It will be an especially interesting outcome if Pierre Leval is on the appeals panel himself. Leval is one of the appeals judges that overruled the district judge in the Authors Guild suit against Google in granting class action status, also in the Second Circuit, requiring the district judge to address the issue of fair use first. Since Google's fair-use argument depends on the Ninth Circuit, the further outcome in this case will tell us much about where the Second Circuit is headed. Of course, it also needs to be admitted that the makeup of the Supreme Court has changed significantly since the Campell court made its decision in 1994. My bet, nevertheless, is that a "transformative use" case will reach the Supreme Court again, sooner or later--unless Congress decides to change the law in the meantime. Sandy Thatcher