[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]

Re: Fair-Use/Schmair-Use...



Peter, you have put your finger on the problem I've tried to raise with Stevan's calling his device a "Fair Use Button." As discussed earlier, Stevan's claim that an author who has assigned all rights to a publisher still retains "fair use" privileges with respect to his/her own article is arguable at best, since various courts of appeal in the U.S. have divided over the question of whether copyright law trumps contract law.

Certainly, if a case were to arise and Stevan were the defendant, he could try claiming fair use as a defense, and given the uncertain state of the law in this arena, he might prevail. However, by calling it a "Fair Use Button," Stevan is proclaiming to the uninitiated and unsophisticated (99.9% of the people would would use such a device probably know little about the case law in this area) that there is no question here about whether this is fair use or not. He has already decided the issue by giving the device this name!

So, to my mind, this is sleight-of-hand, a form of trickery that is going to fool a lot of unsuspecting people. Stevan may think this is all common sense, but in fact he is using a term that has a specific legal meaning (however vague it may be around the edges) and yet wants people to believe that it has a common-sense meaning, too, which is the meaning HE attributes to it in his own linguistic world. Thus I believe it is a disservice to the community Stevan wants to serve by employing this legerdemain. In terms that philosophers use, his is a stipulative definition disguised as a factual description.

P.S. I actually agree, too, that the practice of an author sharing a paper with another researcher who requests it, one request at a time, should be considered as fair use-and should be allowed by all publishers anyway. But Stevan doesn't tell us what limits, if any, he puts on authors' distributing their articles once a contract has been signed and rights transferred. Does he, for instance, condone responding to a request to have the article posted on a listserv to 1,000 people subscribed to that listserv? Does he think it is ok for an author to sell an article for use in a course pack for a large course in a non-profit university, or in a for-profit university (like Phoenix)? Publishers would rightly object to the latter, but theoretically Stevan's "Fair Use Button" could be used to respond to such a request. And if Stevan doesn't think the latter is fair use, then isn't that a request for permission that he would then deny through his device? Stevan then would, in effect, be doing what any publisher does, viz., responding to individual requests and making judgments about what to allow for free and what to charge for or deny.

Sandy Thatcher
Penn State University Press