From: Kevin Smith <[log in to unmask]> Date: Wed, 11 Dec 2013 13:37:04 +0000 This message is such a marvelous illustration of the very theory Zick Rubin was employing -- the theory that cognitive dissonance results when a cherished ideology encounters facts that seem to disprove it -- that I would like to think that it was written in a humorous vein. Alas, I cannot think that, because it is so consistent with previous statements of Sandy's closely held but thoroughly erroneous ideology about fair use. I certainly will not acknowledge that the GBS decision represents bad law, although I cannot speak for the "many people" like me. Judge Chin cited precedents from multiple jurisdictions, and did the analysis that was called for in the case. In what sense, other than contradicting Sandy's fantasy about what fair use should be but is not, is it "bad?" It is certainly good for all of those people who benefit from the Google Books Search; it was precisely those benefits that swayed Judge Chin. And that was quite correct; if Sandy would examine the history of fair use with an open mind he would find that the "social utility" that he scorns has always been at the heart of that doctrine. Fair use exists to prevent the copyright monopoly from being used, as monopolies often are, to choke off cultural and economic progress. So Judge Chin look at exactly the correct facts in his analysis. Facts are the real sticking point here. As I have pointed out before, Sandy wants clear rules and dividing lines about fair use, but that is simply not how the analysis works. Each case regarding fair use is analyzed according to its own specific facts and circumstances; the four fair use factors are really just guidelines for a factual inquiry. It is his unwillingness to acknowledge this fundamental aspect of copyright law that leads Sandy into assertions about "simple truth" and conflations of unrelated assertions. The GBS decision, for one thing, is wholly within the jurisdiction of, and founded on precedents from, the Second Circuit. So invoking the reversal rate of the Ninth Circuit (the huge majority of reversed cases were not about copyright at all, of course) is irrelevant. Certainly the Grokster case was reversed, but on an entirely different set of facts, especially in regard to the nature of the use, than are present in the GBS case. It is an important part of Sandy's fair use ideology to assert that the Ninth Circuit is the evil force that is blocking the realization of some fair use paradise, but those stubborn factual analyses, which have led multiple circuits into similar "error," keep getting in the way. It is indeed true that I was surprised by the way the arguments in the GSU appeal proceeded, although it is important to point out that that appeal has not yet succeeded or failed -- there has been no ruling as yet from the Eleventh Circuit. In any case, the source of my surprise had little to do with differences about how the fair use analysis worked; the judges were not interested at all in the ideological line Sandy would like to draw. In my opinion the judges on that panel simply had not fully grasped the facts of the case, which explained their inability to see the reasons that the copy shop cases are inapposite. It is worth remembering that in earlier iterations of his rigid and simplistic theory of fair use, Sandy often evoked Judge Pierre Leval as one of his "prophets." Yet Judge Leval was part of the Second Circuit Court of Appeals panel that remanded the case back to Judge Chin with pretty clear instructions that the GBS project was likely to be fair use. The unfortunate truth that Zick Rubin was pointing us to is that when such prophets let down their true believers, those believers seldom give in to reason; they are more likely than ever to double down on their ideological fantasies. Kevin -----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]