Re: Fair-Use/Schmair-Use...

[Sandy Thatcher <sgt3@psu.edu>]

The reason I object, Stevan, is (1) the transaction you describe 
itself has nothing to do with what "fair use" legally means (it 
would enter into the picture only when the user decided what 
further to do with the article received-whether to quote it in a 
paper, to re-send it to other colleagues, etc.) and (2) there is 
so much confusion already among students and faculty about what 
"fair use" means that we don't need to add to it by applying it 
to something to which it has no immediate relevance.

You obviously have disdain for legal terminology and copyright 
law. But law, like science, depends upon careful use of technical 
terms. Would you sanction casual use of technical terms from 
science that could create confusion in the public mind? If not, 
then why do so here where the law is concerned?

So, I agree with your proposal to call this "schmair use."

Sandy Thatcher
Penn State Press


> On Wed, 1 Aug 2007, Sandy Thatcher wrote:
>
> > Sorry, Stevan, but if the author has the option to deny sending 
> > the article (on your second alternative), then in effect the 
> > author is either not giving permission to the requester to use 
> > it for the stated purpose or is making it more difficult for 
> > the requester to gain access to the article, and neither of 
> > these is properly considered a matter of "fair use." Fair use 
> > occurs without any process of permissioning involved, and it is 
> > not a matter of access anyway but of use; the requester can 
> > still make "fair use" of the content of the article when 
> > accessed in another manner.
> Quite the opposite, Dear Sandy! All it takes is common sense 
> (and abstention from legalistic mumbo-jumbo that has no 
> counterpart in the real world!):
>
> I do some research. I discover something. I write it up. I 
> submit it to a journal for peer review, and, if accepted, 
> publication. I deposit the final accepted draft in my 
> Institutional Repository. If my publisher endorses immediate 
> Open Access self-archiving, I make the deposit Open Access. If 
> my publisher prefers an embargo (and I feel like complying!), I 
> make the deposit Closed Access. A would-be user uses the Button 
> to request a copy of the deposit for research purposes. If I 
> choose to do so, I click to authorise the emailing of a copy to 
> that user for research purposes.
>
> End of story. Perfectly simple. Exactly the same as what has 
> been going on for a half century, with requests for reprints by 
> mail, but it has now been adapted and optimised for the online 
> era.
>
> I can think of no reason I would refuse to send an eprint to a 
> requester for research purposes, but, let's say, if I discover 
> somehow that the requester wants to use it to promote racism or 
> terrorism, I might refuse. Absolutely nothing hangs on this. 
> It's completely irrelevant to the point of substance under 
> discussion.
>
> The "fair use" is the requester's, if I send him the eprint, and 
> mine, if I decide to send him the eprint. That's transparent, 
> and fits intuitively with what we mean by "fair use." But if 
> there is some convoluted technical reason why you would prefer 
> to call that something other than "fair use," call it "schmair 
> use" and let's leave it at that.
>
> Best wishes,
>
> Stevan Harnad