[Air-L] On academic uses of academic listservs

[Bill Herman]

I see this as both a legal and an ethical issue. As regards the ethics: 
Props for sparking a discussion, but I think the air-l policy statement 
is dispositive (and good advice for email generally). It reads, in part:

------
ETIQUETTE

Keep in mind that anything you send to air-l automatically goes to
all subscribers – please keep posts on-topic for the list. Also
remember when posting to the list that air-l is a public forum and
that your words will be available to everyone subscribed to the list
and placed in a public archive. Messages sent via email can easily be
reproduced and circulated beyond their originally intended audience,
and neither the list manager, the association's officers, nor the
server’s host are responsible for consequences arising from list
messages being re-distributed.
------
See: http://aoir.org/?q=node/5

Legally: I'm no attorney, but this is really a copyright issue, and as 
such, I'd be entirely comfortable arguing that copyright is no obstacle 
to almost any conceivable academic use of an academic listserv, at least 
not in the US. I know much less about other jurisdictions, but based on 
my much thinner knowledge of fair dealing, I'd predict a similar 
outcome, at least in most Commonwealth nations. (Those of you from 
outside the US: please excuse my jurisdictional Americentrism. If you 
think your courts would find differently, how so?)

In any case, if you use listserv material for academic work in the US, 
you're almost certainly fine. US Code, Title 17, Section 107, reads, in 
part:

------
... the fair use of a copyrighted work, including such use by 
reproduction ... for purposes such as criticism, comment, news 
reporting, teaching (including multiple copies for classroom use), 
scholarship, or research, is not an infringement of copyright. In 
determining whether the use made of a work in any particular case is a 
fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is 
of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the 
copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the 
copyrighted work.
...
------
See: http://www.copyright.gov/title17/92chap1.html#107

Each of these factors favors a finding of fair use here. The intended 
use is for nonprofit scholarship and education. The copyrighted work 
being quoted is something (a post to a free listserv) with absolutely no 
commercial value. (Posts have intellectual value, but we've already 
given them away.) The proposed project would reproduce mere fractions of 
each post. Finally, there is no concern about the effect on the 
marketability of something with no commercial value.

I would argue that one could even include a full post if that's 
important to illustrate a point. (This is especially true for a short post.)

Things are somewhat different when the quoted and quoting works are of a 
commercial nature--see Harper & Row v. Nation Enters., 471 U.S. 539 
(1985). But virtually any academic use of listserv posts is almost 
certainly OK--at least in the US.

Cheers,

Bill

Bill D. Herman
Ph.D. Candidate
Annenberg School for Communication
University of Pennsylvania



> ----------------------------------------------------------------------
> 
> Message: 1
> Date: Fri, 18 Jan 2008 10:54:00 -0600
> From: "Hall, Richard H." <rhall at mst.edu>
> Subject: [Air-L] Permission to quote air-l list
> To: <air-l at listserv.aoir.org>
> Message-ID: <C3B635C8.18A5E%rhall at mst.edu>
> Content-Type: text/plain;	charset="US-ASCII"
> 
> On 1/18/08 10:20 AM, "Pam Brewer" <brewerpe at appstate.edu> wrote:
>  
>> I would like to refer to this thread in my analysis as you all have made
>> some excellent points.  May I ask your permission to do so?
>>
> This is a really interesting question, to me. First of all, I was the one
> who originally asked this question and have really appreciated the
> thoughtful replies. Second, I had thought I might try and collect and
> summarize and post it to my blog, including quotes. My thinking was that
> this is a public list, but, now that I think about it, I had to get
> permission to join, and I don't think the archives are posted publicly (or
> are they?)
> 
> If one needs permission - who from?
> 
> I guess you would need to get permission from whoever you were quoting.
> 
> ... Richard
>