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]