Re: Scholarly communication, copyright, and fair use

[Kevin L Smith <kevin.l.smith@Duke.edu>]

I posted a reply to Sandy's comments about peer-review on my 
blog, so interested readers can go there to read those remarks. 
The thrust of my reply is that Sandy is address himself to a 
debate that is distinct from the point I am trying to make in my 
post.

Upon further reflection, it seems like a good idea (list readers 
may disagree!) to make a few comments about Sandy's invocation of 
Judge Leval's highly influential article in his comment.

First, it is worth pointing out that this 25-year-old law review 
article is not the final word about fair use. For one thing, 
Judge Leval never claimed that only transformative uses could be 
considered fair use. Had he made that claim, he would have been 
contradicting the plain language of the statute, and he was too 
smart a jurist to do that. Basically, his article is a reflection 
on the analysis of the first fair use factor, provoked by the 
reversal, on appeal, of a copyright decision he had made and his 
desire to argue that he had gotten the case right. We should 
remember that fair use is a highly fact-dependant analysis based 
in equity; no theoretical construct will ever be able to fully 
define it.

Second, when the Supreme Court cited Judge Leval's article in 
"Campbell v. Acuff-Rose," they unfortunately set off a tendency 
to insist that all fair uses had to be transformative. The 
result, however, has not really been a narrowing of fair use so 
much as an expansion of the definition of transformation. The 
recent decision in the "Turnitin" case that found that a merely 
"repetitive" copying of papers submitted to an anti-plagiarism 
service was transformative because of the beneficial social 
purpose the service used those papers to provide is certainly a 
far cry from what Judge Leval was imagining. This tendency has 
really been good news for findings of fair use, but it has led, 
in my opinion, to some interesting reasoning. I have no doubt 
that, if the defendants in the Georgia State litigation prevail 
on fair use, there will be language similar to that used in 
"Turnitin" finding that the Georgia State use is transformative.

Finally, one of the best reasons to read the article on which my 
blog post is based is that the author directly engages Judge 
Leval, arguing that, while the Judge successfully revisioned the 
first fair use factor in a helpful way, his approach to the 
second factor was too narrow and based on the limited approach to 
that factor that had prevailed for some years. Kasunic is really 
trying to do for the second factor what Judge Leval did for the 
first -- return to the purpose of copyright itself and try to 
understand how an analysis of the nature of the original work 
fits into the overall intent of copyright law and the fundamental 
reason that fair use is part of that law.

Kevin L. Smith, J.D.
Scholarly Communications Officer
Perkins Library, Duke University
PO Box 90193
Durham, NC  27708
919-668-4451
kevin.l.smith@duke.edu
http://library.duke.edu/blogs/scholcomm/