From: Sandy Thatcher <[log in to unmask]> Date: Sun, 25 Oct 2015 20:26:06 -0500 The author of this paper makes an argument that is very similar to what I argued in my comment to The Scholarly Kitchen's discussion of the ruling when she observes: HDL's full-text search functionality fails to meet the "adds something new" requirement under traditional transformative use analysis. . . . Removing original expression seems to be the precise opposite of adding new expression. Moreover, while users and data-miners may use the search results to subsequently generate new meaning or message or create information, insights, or understandings with respect to the original works, HDL's search service does not. Full-text search is a technological tool, albeit one that has tremendous value and use to society, as the courts noted, but it does not transform the original works by adding something new as required by existing fair use doctrine.The circuit court purported to corrected [sic] the district court's analysis on this point when it noted that making an'invaluable contribution to the progress of science and cultivation of the arts" is not enough to transform an infringing use into a fair one. A careful review of the circuit court's own reason, however, casts doubt on whether it was ultimately able to push beyond the "value to society" rationale in a meaningful, doctrinally-supported way. I explained what the author calls this "miscalibration" between existing copyright law and new technologically facilitated and potentially infringing human behaviors in a somewhat different way by focusing on the role of human creativity as the key to traditional understandings of fair use: My reading of Leval's original article led me to believe that the key to understanding fair use is the act of human creativity involved in adding new meaning and value to a previous work used for this transformative purpose. That is exactly what was at issue in the Campbell case involving a parody of a song. The Ninth Circuit, however, starting with cases involving thumbnail images used to create an index, relied on a situation where the index was created by an algorithm in a computer's operation, no more creative than the act of pushing a button on a photocopy machine. In the Texaco case, where Leval was the district court judge, the judge on the appeals court who wrote the decision finding infringement specifically acknowledged the "social utility" afforded by photocopying but argued that, as a mechanical operation, it had "nothing to do" with fair use as traditionally understood (because that traditional understanding always focused on an act of human creativity). The author of this paper, in her conclusion, speculates that the ruling simply used the framework of existing fair-use jurisprudence to reach a decision that was motivated by policy considerations: This observation is further supported by an in-depth discussion and analysis of mass digitization in the context of the recent HathiTrust litigation and, in particular, the courts' reliance on existing fair use doctrine to support what may have ultimately been a policy-based decision. In my comment in TSK I noted: In the Perfect 10 case the dissenting judge took his colleagues on the Ninth Circuit to task for taking it upon themselves to decide whether the "social utility" of something should be used to create public policy, since that is usually the role of a legislative body like Congress. Georgia Harper once famously observed in her article "Google This!" that what is at stake in any dispute about fair use is really an assessment of "overall social utility," and that the explanation of a court's decision in terms of the four factors is really so much window-dressing for a decision reached on other grounds. It would appear that the Second Circuit now has done just that, following the Ninth Circuit's lead. Sandy Thatcher From: Robert Glushko <[log in to unmask]> Date: Fri, 23 Oct 2015 13:01:15 +0000 I think that most of us agree that fair use in these mass digitization cases is being asked to do a lot. Personally, I think Google has provided a massive public good with digitization at the same time as they've given themselves a huge economic asset. Very good point on the lack of privity between the economic purpose and the social benefit Mark. I very much support the Google Books project, and I think that the outcome in the courts was right, even if I'm a bit skeptical of the way they got to that outcome. I'd highly suggest a paper from iConference 2015 on this subject. Full disclosure, it was written by my partner as part of her dissertation on legal and organizational issues around Hathitrust, but she's much smarter than I am so don't let that dissuade you. In it she develops a theory of "innovative deviance" and applies it to the Hathitrust case. It has really helped my thinking on this complex topic. https://www.ideals.illinois.edu/bitstream/handle/2142/73651/171_ready.pdf?sequence=2