Re: Fish or fowl?

[Joseph Esposito <espositoj@gmail.com>]

Putting irony aside, let's parse this carefully.

Mr. Trosow is absolutely correct that publishers don't determine what
constitutes fair use (though they would like to), nor was I suggesting
that they do.  Furthermore, that determination is not to be made in a
mailgroup.  My opinion simply doesn't count.  What counts is what the
courts say.  I am not much of a court-watcher myself, but I would venture
a guess that the recent activity concerning ereserves at the University of
CA at San Diego is likely to result in a court case, and it will be an
interesting one.  I regret that such a case is likely to proceed, but I
don't see how it is going to be stopped or who has the wherewithal to try.

What is true, however, is that publishers make certain business decisions
based on what they believe the law to be, including the guidelines for
fair use.  If they make a bad guess, they howl and then change their
business plans.  If 20% of a text becomes the norm for fair use, some
publishers will ponder the economic implications.  If they believe that
this guideline makes publishing certain books unprofitable, they will
publish fewer books.  One strategy that already has a certain degree of
acceptance among a segment of publishers is not to distribute products to
libraries.  I was astounded when I first encountered this a few years ago
(like virtually every publisher I know, I love libraries), but I
subsequently discovered that the practice has a sizeable number of
practitioners.

So the practical question is not who determines what is fair use but what
the effect of any such determination will be.  A broad definition of fair
use (like that implied by the UCSD ereserve policy) will likely reduce the
amount of investment in certain publications.

Joe Esposito

On 6/13/05, Samuel Trosow <strosow@uwo.ca> wrote:
> Since when do publishers have the right to determine what constitues
> "acceptable fair use"?  I don't see anything in the Copyright Act that
> delegates such rulemaking authority to the publishers. Have I missed a
> recent amendment?
> 
> Sam Trosow
> University of Western Ontario
> 
> Joseph Esposito wrote:
> 
> > Yes, what is a snippet?  But there is another aspect of the Google Print
> > program that gives publishers pause, the requirement that they allow up to
> > 20% of the text to be accessible online.  Of course, 20% is not 100%, but
> > it is a far cry from the 500 words that most publishers agree constitutes
> > acceptable fair use.  Google is pushing the envelope, no question about
> > it.
> >
> > Joe Esposito