From: Kevin Smith <[log in to unmask]> Date: Mon, 16 Dec 2013 13:24:24 +0000 [MOD NOTE: With this message, let's declare this thread at least temporarily exhausted. Many good points have been made, and so we should stop lest, as Kevin suggests, tiresomeness beings to set in!] I understand that this debate is tiresome to many list members and clogs the list with a topic irrelevant to the original purpose of the list. In truth, I myself am coming to think of this exchange the way some people regard Internet porn -- I know I should look away, but cannot resist the fascination. My justification is that Sandy seems to believe that he can win an argument by simply repeating his error often enough, and I want there to be a regular voice reminding list members that he does not understand fair use. I will confine myself to one point. Fair use is common law. Even when it was included in the 1976 Copyright Act, Congress explicitly said that it should continue to evolve and adapt to circumstances, which is what common law does. This is the fundamental point that Sandy cannot grasp. The article by Judge Leval was published almost a quarter of a century ago. The Texaco case was decided 20 years ago, and since then it has been distinguished, criticized or cited in dissent in court opinions more often than it has been followed as precedent. It is hardly a "landmark." Fair use has moved on, guided by many different courts over those two decades (as multiple people have shown on this list, this Second/Ninth dichotomy is a figment of Sandy's imagination). It seems that Judge Leval has also moved on. It is time for Sandy to move on. 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: Thu, 12 Dec 2013 12:16:49 -0600 Kevin seems not to remember that in one landmark fair-use case in the Second Circuit, American Geophysical Union vs. Texaco, where Judge Leval was the district court judge making the initial ruling the appeals judge who wrote the majority opinion explicitly addressed the issue of social utility and found it NOT to justify a finding of fair use: "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 xerographyŠ, 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." This is a direct application of Leval's theory of transformative use, and the Second Circuit was consistent in applying this theory in fair-use cases (including the Grateful Dead poster case) up until the HathiTrust decision by Judge Baer, who decided instead to cite the Ninth Circuit decisions as his main precedents, and then was followed by Judge Chin. I'd like to ask Kevin how he squares these two decisions with the explicit rejection of "social utility" in the Texaco case. Sandy Thatcher 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