From: "Seeley, Mark (ELS-WAL)" <[log in to unmask]> Date: Thu, 22 Oct 2015 12:18:13 +0000 I’ve also been thinking about the Authors Guild-Google decision and posted a longer analysis and summary (comment) on my LinkedIn summary section, but will summarize below. As you might expect, I’m highly concerned about the uncertainty introduced by the panel’s expansion of ‘transformative’ use from its origin as a part of the first factor ‘purpose of the use’ to a “suggestive symbol for a complex thought” that runs through all four factors. I think it is also odd for the court to equate a scholar’s potential research purpose in the often-used “United States as plural vs singular entity” example, with Google’s purpose in creating a huge database of content. In other words I don’t think Google started the Book/Library project in order to do a specific scholarly research project. No doubt Google started it for a variety of reasons (including socially useful purposes) -- but certainly one of those reasons was to generally enrich and improve Google’s own search algorithms by exposure to an ever increasing mountain of data. That’s a huge competitive advantage for Google which is extremely difficult for any other technology vendor or rights organization to compete with. It also concerns me that the court pays so little attention to the possibilities of potential markets for authors in these kinds of secondary users—the literal language of 107 does actually use the word “potential,” and in essence the court has put the burden of proof re this aspect on the rights-holder. Bottom line is that although the decision could be read narrowly (specific and unusual fact circumstances, possible appeal, perhaps differences in approach among the circuits), there’s no question that this is a very influential jurist (Leval) and a very influential court, and therefore very impactful. I think it makes it very difficult to articulate what "fair use" actually means in practice (thinking about the reference in the Liblicense model agreement for example)... https://www.linkedin.com/profile/view?id=16596255&trk=hp-identity-name (then go to the "summary" section)… Mark Seeley Mark Seeley, Senior Vice President & General Counsel Elsevier -----Original Message----- From: Kevin Smith <[log in to unmask]> To: LibLicense-L Discussion Forum <[log in to unmask]> Date: Mon, 19 Oct 2015 13:15:01 +0000 I have blogged about the ruling at: http://blogs.library.duke.edu/scholcomm/2015/10/18/google-books-fair-use-and-the-public-good/ but wanted to make an additional observation. As I read, and wrote about, Judge Leval's effort to distinguish a transformative use from the creation of a derivative work, I was forcefully remind of Professor L. Ray Patterson's frequently rejected distinction between using a work and using the copyright in the work. Perhaps Patterson was not so off-the-wall as some thought, merely ahead of his time. Kevin L. Smith Director, Copyright & Scholarly Communication Duke University Libraries -----Original Message----- From: Ann Shumelda Okerson <[log in to unmask]> Date: Sun, 18 Oct 2015 19:51:23 -0400 Reuters: A U.S. appeals court ruled on Friday that Google’s massive effort to scan millions of books for an online library does not violate copyright law, rejecting claims from a group of authors that the project illegally deprives them of revenue. The 2nd U.S. Circuit Court of Appeals in New York rejected infringement claims from the Authors Guild and several individual writers, and found that the project provides a public service without violating intellectual property law. We recommend the roundup from Gary Price of INFOdocket. See for summaries, link to decision, commentary, and much more, at: http://www.infodocket.com/2015/10/16/ruling-just-in-google-book-scanning-project-legal-says-u-s-appeals-court/ Any consequences, for example, for HathiTrust? Maybe not...