RE: Obsolete legal concepts? (RE: Fair-Use/Schmair-Use...)

["Rick Anderson" <rickand@unr.edu>]

Stevan, having provided five examples of legal terms that you 
consider obsolete, can you explain what makes them so in the new 
environment?  Why, for example, is the concept of "copyright" now 
obsolete?  Should the creators of original works have no 
exclusive rights anymore -- and if not, why not?  And if the 
concept of "publication" is obsolete, why do you insist on such a 
narrow definition of the term (to exclude, for example, public 
distribution by means of OA archiving)?

---
Rick Anderson
Assoc. Director for Scholarly Resources & Collections
Marriott Library
University of Utah
rick.anderson@utah.edu

________________________________

From: owner-liblicense-l@lists.yale.edu on behalf of Stevan Harnad
Sent: Mon 8/13/2007 2:54 PM
To: liblicense-l@lists.yale.edu
Subject: Re: Obsolete legal concepts? (RE: Fair-Use/Schmair-Use...)

On Sun, 12 Aug 2007, Rick Anderson wrote:

>> No, Sandy, in science I would not; but in the case of these 
>> legal terms and concepts -- applied to a new medium that 
>> lawyers neither understand, nor one to which their obsolescent 
>> terms and concepts are even coherently applicable -- it is the 
>> "technical terms" that are the confused ones, and what is 
>> needed is some common sense in their stead, to dispel the 
>> confusion they create in the public mind.
>
> Stevan, could you give us, say, five examples of legal terms 
> and concepts that are currently being used in this debate, and 
> whose meanings are obsolete or otherwise inapplicable in the 
> new medium?

Sure. And I am referring specifically to the OA debate, and the 
2.5M annual peer-reviewed journal articles that are OA's target 
content. (I have no imperial designs or interests insofar as the 
digital domain Writ Large is concerned.)

       (1) Fair Use

       (2) Intellectual Property

       (3) Copyright

       (4) Copy

       (5) Publish

There may eventually be ways to squeeze sense out of these terms 
again, in the online era, for the specific case of OA's target 
content. But no one I've heard so far (legal or lay) is coming 
anywhere near finding those sensible, defensible reconstruals. 
It's all mostly incoherent, anachronistic, pedantic, Procrustean 
prattle, often alarmingly, even grotesquely, arbitrary, and 
transparently dysfunctional. The only reason it gets any credence 
at all is because no one has any deeper ideas.

So I just steer clear of the juridical jargon altogether, taking 
it to be moot until and unless someone comes up with something 
sensible that really fits the new (online) medium as well as the 
needs of the new (online) research community.

But I will definitely continue to use "Fair Use" as the 
descriptor for "the Button." Not because I think there is a crisp 
legal issue at issue, but simply because people *understand* what 
the button is for, and how to use it, when it is put that way. 
("Eprint Request Button" was not nearly as effective or 
comprehensible.)

Just pragmatism, not jurisprudence...

Chrs, Stevan