From: "Seeley, Mark (ELS-WAL)" <[log in to unmask]> Date: Wed, 28 Oct 2015 13:09:13 +0000 Thanks Robert-- I have the article now and will read it with gusto over the weekend-- of course I was a bit put off by language about copyright such as "utilitarian tenant of maximizing net social welfare" as I actually think that authors and publishers may occasionally have a legitimate right to decide not to have their works used in a particular context or by a particular party (so I tend to think that the US copyright clause also has to be seen in relation to the more European "authors rights" concepts, thinking back to the 18th century)... but it does look like an interesting approach once you get beyond the preamble... Re Kevin's comments on commercial purpose, of course there are often commercial purposes involved in uses ultimately found to be fair-- and commercial publishers often rely on the principle directly (as in the DK/Grateful Dead case). However I do still find it odd that Google's direct commercial purpose (building a massive search/database/algorithm) gets such short shrift in the Authors Guild decisions-- and that the research-oriented purposes are in the end relatively speculative and "potential." Why does the court provide so much emphasis on this potential research purpose, when it decries the potential market impact in its fourth factor analysis. I believe the burden of proof has been substantially mixed. I agree that the Book project was socially useful-- for example it was eye-opening to me to get a sense of the trade and local language book publishing activities that Elsevier was engaged in in the first half of the 20th century-- not something that the modern STM-oriented company thinks about much. But the question is whether, on balance, it was more commercial than research-oriented, and I think it was more commercial. Obviously judges in the 2nd Circuit disagree with me! Best, Mark Mark Seeley, Senior Vice President & General Counsel Elsevier 225 Wyman Street, Waltham, MA 02451, USA [log in to unmask] Internal Elsevier Legal department intranet site: http://nonsolus/legaldepartment/ External information at http://www.elsevier.com/wps/find/homepage.cws_home -----Original Message----- 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 -----Original Message----- 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