From: "Zeller, Micah" <[log in to unmask]> Date: Wed, 11 Dec 2013 20:20:26 +0000 The Supreme Court overturns decisions from the Ninth Circuit "more times (and often unanimously) than any other Circuit" in part because (1) the Court reverses more than it affirms (72% rev'd in OT12, 63% in OT11, 72% in OT10, 79% in OT09), (2) unanimous decisions are the most frequent split (47% over last four terms), and (3) the Court takes more cases from CA9 than any other circuit (between 18-32% of all cert grants each year between 2009-2012). And the reversal rate for the Ninth isn’t particularly anomalous (CA9 cases represented 18% of merits opinions and 21% of total reversals over last four years). (stats from SCOTUSblog – http://www.scotusblog.com/reference/stat-pack/). So though the Ninth has a reputation for being a historical outlier and lab of novel legal theories, there are quite a few factors in play (like collegiality within a bench, makeup of SCOTUS, classes of cases, etc.) and I think Sandy’s characterization below oversimplifies things. It’s also not quite right to call Grokster a case about fair use. The Supreme Court didn’t address the doctrine; neither did the District Court, the Court of Appeals, or either court on remand. But I don’t mean to nitpick. What I’d like, and what I hope would be constructive to the discussion, is if Sandy would explain what he means by saying the Authors Guild v. Google decision is “bad law.” The law changes, as he’d certainly agree, and courts interpret fair use differently today than they did twenty years ago (Netanel’s “Making Sense of Fair Use” gives an excellent summary of recent empirical studies on fair use case law, tracing the rise of the transformative use paradigm – http://law.lclark.edu/live/files/9132-lcb153netanelpdf). This is true in both the Ninth and Second Circuits. In the Second, Judges Leval, Cabranes, and Parker remanded the original Google cause to the district court for consideration of fair use, which their colleague Judge Chin subsequently found. Cabranes and Parker are part of the panel that heard and will decide the HathiTrust appeal. Judge Parker's opinion for the court in Prince v. Cariou explicitly accepts the interpretation of fair use that Sandy calls "repurposing only" ("The law imposes no requirement that a work comment on the original or its author in order to be considered transformative, and a secondary work may constitute a fair use even if it serves some purpose other than those (criticism, comment, news reporting, teaching, scholarship, and research) identified in the preamble to the statute." 714 F.3d 694, 706 (2d Cir. 2013)). Sandy’s correct that the test for transformative use is contentious, and that a difference in purpose isn't the same as transformation. Whether it's "bad" law or not, it's been settled for years that "repurposing only" can be held as transformative. So where is the Ninth Circuit's interpretation out of line with other appellate authority? Micah Micah Zeller Copyright & Digital Access Librarian Washington University in St. Louis [log in to unmask] -----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