[Air-l] Fair Use! Fair Use! (branching from "Using Online Citations")

[Logie]

John B. White wrote:

>This raises a host of interesting copyright questions.  Archiving a 
>website for
>research purposes is probably not a violation.  Redistributing reprints of it,
>without the original author's/poster's permission, is. Mirroring it locally,
>without permission, is.  In this day and age, even "deep linking" 
>can be considered copyright infringement.

I disagree (here and there) and I really worry about an increasing 
failure by researchers and academics to exercise the rights granted 
by the Fair Use provisions of the 1976 copyright revision. (I beg the 
indulgence, or simply the delete buttons, of our non-US colleagues 
who might well grow impatient with the following US-oriented 
discussion of copyright . . .or on second thought I beg their input 
-- what kinds of copyright exemptions are available on your turf?)

Back to provincialism. US CODE Title 17, Section 107 reads, in part:

the fair use of a copyrighted work, including such use by 
reproduction in copies or phonorecords or by any other means 
specified by that section, for purposes such as criticism, comment, 
news reporting, teaching (including multiple copies for classroom 
use), scholarship, or research, is not an infringement of copyright.

This suggests to me that there are many instances in which 
redistributing (note:but -- in general  -- NOT selling) web 
printouts, or, for that matter, any other copyrighted works, would be 
fair uses.

I would argue strenuously that while securing permission for (for 
example) redistribution of reprints of a web page circulated within a 
classroom is courteous, it is by no means required by current law, 
and that sane courts would shoo away a litigant pursuing damages for 
this sort of supposed "infringement." Further, others have argued 
that seeking permission for such uses perpetuates a culture in which 
the copyright cops have the upper hand and academic and critical 
discourse is ultimately stifled.

I won't detail the four point test which accompanies (and potentially 
limits) the above-cited passage. It's available at 
http://www4.law.cornell.edu/uscode/17/107.html for those who wish to 
review it. I'll simply say that a non-profit use, especially an 
academic use, which does not harm the potential market for a given 
work is almost certainly a fair use.

This section's language, drafted with the input of academics, 
librarians and the major "creator's rights" group strikes a 
reasonable balance, and preserves safe spaces for critics, 
journalists, teachers, and researchers to do their work. But Fair Use 
will fade from both cyber and terrestrial spaces if honest and 
fair-minded people who depend on reasonable access to others' works 
fail to push back against the depredations of the copyright 
industries, who, emboldened by the crippling of Napster, are 
currently waging a  disinformation campaign.

Most of the questionable uses of copyrighted material on the Web have 
been blocked or stopped by injunctions, and there aren't yet many 
full-fledged court decisions speaking to Internet-based copyright 
"violations," so I would caution against flatly stating that a given 
would constitute a violation, especially because Congress has 
expressly avoided "bright line" distinctions such as the apocryphal 
"10% rule," which is often mistaken for law (y'know, the claim that 
you are free to use up to %10 of a given work). The four-point fair 
use test must be applied to every single "violation," and a use isn't 
a full-fledged violation until a court says it is.

That having been said, there ARE uses that will, no doubt, flunk the 
four-point test and (if the copyright holders aren't asleep at the 
switch) prompt swift and substantial legal action. Scanning and 
posting the latest Stephen King novel to your University's webspace 
because you're asking your students to study it remains a very, very 
bad idea (from a legal standpoint, this isn't literary criticism). 
The uses contemplated above are far more reasonable, and might well 
pass the test with the right particulars. My hope is that when uses 
are fair and reasonable that they NOT be stifled by capitulation to 
the worst excesses of the copyright industries.

To make a long diatribe short . . . know your rights, and use 'em or lose 'em.

Best,

John Logie
Department of Rhetoric
University of Minnesota




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