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Multimedia Fair Use Guidelines

This is an effort to respond to Stan Diamond's question concerning library
opposition to the Multimedia Fair Use Guidelines. Although I am not a
librarian, nor am I a member of the ALA or ARL, I can speculate as to what
may be some of the objections to the Guidelines.

While generally the attempt to inject some precision into vague legal
standards is a laudable goal, in some cases some ambiguity is better than
too much precision.  The four factor fair use test  employs the chief isses
that should be weighed when attempting to evaluate whether a particular use
should be permitted.  To paraphrase former Supreme Court Justice Powell, I
think we all know a fair use when we see it.  I don't see anything about
electronic and digital information that justifies a more precise definition
of the amount of copyrighted material that may be fairly used.  The issue
of how much and how often material can be copied fairly, whether it be
digital or more traditional media, can best be determined by the
traditional four factor test. Mechanical and rigid limitations on the
amount of material that may be fairly used (section 4.2 et. seq.)  may be
adequate for some purposes, but very often will not be appropriate for
others.  Forcing scholars to count words and run stop-watches to do their
work of educating does not seem like a reasonable requirement.  

The requirement that copyrighted materials may not be used for remote
learning unless they can not be copied (Section 3.2.3)  presents a
tremendous limitation on the use of the internet for distance learning.  As
a practical matter, I am not aware of any way of preventing users from
copying materials displayed on a computer screen.  The limited use of such
materials permitted in the event that copying cannot be prevented entirely
(e.g., availability of the materials for short time limits, etc.) does not
remedy the problem, since a course usually lasts several months and
students will need to refer to course materials throughout the term.  And
permitting copies of the materials at the school defeats entirely the
promise of distance learning.

The two year time limitation on use of the materials is also a problem, as
instructors will have to keep tabs on just when they used a copyrighted
piece of information.  Since many instructors continually revise and update
their work, without completely discarding the basic course materials, it
will be difficult to determine when the two year limitations period expires.

The time limitation issue leads to a larger point:  The Guidelines seem to
extend control over the original work of educators and students.  Under
traditional notions of the fair use doctrine, if a use is considered
"fair", then the user may pretty much do what it wants with the material.
These guidelines, however, seem to give the copyright holders perpetual
control over the mulimedia project as a whole.  

Very truly yours, 

Rodney L. Stenlake
655 Orange Street, Unit 5
New Haven, Connecticut 06511
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