[Air-l] Copyright and fair use -- further notes

Ken Friedman ken.friedman at bi.no
Thu May 24 10:17:12 PDT 2001

Dear Colleagues,

Some of the recent posts on copyright and fair use raise valid 
points. These deserve to be argued out with issues and examples made 

At the same time, one issue must be considered. There is a current 
body of law, and on some of these issues, the law -- and not social 
practice -- is decisive. The problem of The Wind Done Gone is not the 
old copyright law, but the extension of this law under the Sonny Bono 

Ted Friedman writes, "we have a responsibility to push the boundaries 
of 'fair use,' and not accept the tightly constrained version 
copyright owners promote." This may be so. I'd like to see the 
argument and the distinctions.

On one issue, though, Ted is wrong. He writes, "I'd like to [insist] 
that ultimately, definitions of 'copyright' and 'fair use' are 
established not just through court decisions, but through social 
practices that involve conflict and struggle."

This is factually incorrect. Copyright is determined by legislative 
act and interpreted by the courts. The same holds true of fair use, 
though fair use tends to have more room for interpretation based on 
its nature as an interpreted part of the law.

Conflict and struggle may lead to revised legislation, but they do 
not establish the law. Social practices influence legislation and 
interpretation both, but a legislature and a judge establish the law.

When I was an editor and publisher, we used to run each issue of one 
sensitive newsletter dealing with the economics of art past a lawyer. 
We did this both to protect against the possibility of libel and for 
the fact that clear demonstration of careful procedures with intent 
to avoid defamation is itself protection against libel.

My lawyer -- he represented Bullwinkle the Moose very successfully, 
and he had been the lawyer for Wilhelm Reich with less fortunate 
results -- once told me a rather impressive fact of law. He said, "If 
you take a pistol and walk out into the street and kill someone, you 
will have killed someone. You haven't committed murder until a judge 
and jury say you have."

It is a mistake to confuse common sense definitions with law, and it 
is a mistake to confuse the process of influencing changes to the law 
with changing the law itself. If someone on AIR-L is elected to 
Congress or appointed to the federal bench, he or she can change the 

The rest of us must be content with conflict and struggle.

There are those few whose individual conflict may indeed bring about 
changes to the law. This requires a willingness to enter the arena as 
Martin Luther King and others did with civil rights, or, perhaps more 
appropriately, as Peter Zenger did with libel law. It is one thing to 
speak of conflict and struggle. It is another to enlist for the fight 
as King or Zenger did.

This distinction is worth considering. It is not clear that fair use 
constrains us from most important kinds of scholarship. Jonathan 
Sterne is right in his view that many publishers are greedy. This 
does not limit their rights under the law. On the other hand, their 
rights do not limit analysis and critique: they limit excessive 
republishing or free transfer of their materials.

Times are changing in many important regards, though, and some of 
these are driven by the new technologies.

The current debate on scholarly publishing and public libraries of 
scientific and scholarly journals offers an important example of the 
ways in which we can bring about important changes. See URL:


The issues raised here are important and valid. I distinguish between 
descriptive statements of the law as it is and the situation as it 
should be.

Most important, one must decide how one wishes to bring about change. 
If one wishes to engage in a form of civil disobedience by purposely 
challenging the law, that is one path. If someone on this list wishes 
to be the Peter Zenger of the new copyright law, all that is required 
is a willingness to take public action that puts it on the line.

My view is that this is not necessary: much can be changed through 
dialogue, debate, and community action. Until the changes take place, 
the law is more clear than its critics seem to acknowledge.

Ken Friedman



Ken Friedman, Ph.D.
Associate Professor of Leadership and Strategic Design
Department of Knowledge Management
Norwegian School of Management

Visiting Professor
Advanced Research Institute
School of Art and Design
Staffordshire University


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