Re: New Republic letter

[David Goodman <dgoodman@Princeton.EDU>]

I certainly agree with Mr. Muchnick, but unfortunately Tasini also
provides publishers with a convenient excuse for not letting libraries and
other users have access to which they are entitled, or to charge extra and
unjustifiable fees for such access. It also is letting them hold us and
the readers hostage while they negotiate with the authors for the fair
payments to which the authors are entitled.
  
This note is meant just as a warning that we should be on guard against
this.  "It's prohibited by Tasini" will join "It's prohibited by
copyright" among the excuses for attempts to narrow or eliminate fair use.
Our best response as librarians is to change our attitude from "it isn't
fair use unless we can be sure it is" to "it is fair use unless we can be
sure it isn't".

As you can tell, I'm not a lawyer and this is not intended as legal
advice. 

David Goodman
Princeton University

Irvin Muchnick wrote:

> Dear Friends,
> 
> The New Republic, in its wisdom, appears to have decided not to publish
> the letter below. So I am using the email megaphone to spread the word.
> 
> The article to which I'm responding can be viewed at
> 
> <http://www.tnr.com/070901/rosen070901.html>
> 
> ***************
> 
> Date: Wed, 11 Jul 2001 21:22:38 -0700 (PDT)
> From: Irvin Muchnick <irvmuch@yahoo.com>
> Subject: Letter to the Editors
> To: online@tnr.com
> 
> To the Editors:
> 
> Jeffrey Rosen says that "overly expansive protection of the rights of
> authors and publishers is dangerous" ("Freelanced," July 9). But his snide
> putdown of the Supreme Court's decision in *Tasini v. Times* - presented
> with all the self-assurance of a tenured professor posing as a
> rank-and-file writer - fails to address why the American Library
> Association supported the National Writers Union's position.
> 
> Perhaps the reason is that this was a dispute not between copyright
> holders and advocates of public access, but *between publishers and
> authors*. Though CD-ROMs, databases and websites per se could not be
> anticipated at the time of the Copyright Act of 1976, a fair reading of
> the legislative history shows an awareness of emerging technologies and a
> conscious embrace of a "doctrine of divisibility," which defined distinct
> rights after first publication and granted them to freelance authors by
> default. Was this the result of a victory by the powerful authors' lobby
> over the feeble publishers' lobby? Or was this - as I believe - an attempt
> to democratize information and culture by giving individual creators, as
> well as corporations, the right to exploit their works in secondary media?
> 
> Critics of *Tasini* would have us think that authors now have both the
> power and the inclination to charge users for "every bit and byte." The
> truth is that we've simply acquired leverage in the evolving negotiations
> for the digital age - including the right to give our stuff away, in the
> forums we choose, in the interest of wider circulation. This better serves
> the public than the consolidation of intellectual property rights in the
> hands of an ever-shrinking number of major publishers.
> 
> Irvin Muchnick
> Berkeley, California