RE: Fair-Use/Schmair-Use...

["Sally Morris \(Morris Associates\)" <sally@morris-assocs.demon.co.uk>]

No Stevan, this is not what 'Fair Use' is all about (as has been 
repeatedly explained on this very list)

Fair Use (or its cousin Fair Dealing in the UK) is about what a 
(legitimate) owner/recipient of copyright content can do with it 
without asking or paying for permission.  This does not include 
passing it on to others

It has nothing to do with what the author can or cannot do - that 
depends on his or her agreement with the publisher.

Sally Morris
Consultant, Morris Associates (Publishing Consultancy)
Email:  sally@morris-assocs.demon.co.uk

-----Original Message-----
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Stevan Harnad
Sent: 18 August 2007 20:29
To: liblicense-l@lists.yale.edu
Subject: Re: Fair-Use/Schmair-Use...

On Thu, 16 Aug 2007, Sandy Thatcher wrote:

> If there is anything fundamental to "fair use," both in legal 
> and even common sense terms, it is that a request for 
> permission is NOT part of the process. But the "Fair-Use 
> Button" is explicitly set up as a process for requesting 
> permission from a potential user to the author.

No, Sandy, it is not set up as a process for requesting 
permission. It is set up as a process for requesting a copy (from 
the author). And both the author providing that copy and the 
requester using it are Fair Use.

> How this is "transparent" and "not tortured" is beyond me. It 
> perverts the whole concept of fair use.

It provides access to papers that have been deposited as Closed 
Access, because of a publisher embargo, instead of being 
deposited immediately as Open Access.

Why you are finding this so difficult to understand is anything 
but transparent to me!

> Stevan, your stubborn adherence to this terminology IS 
> potentially confusing, and it has nothing to do with the 
> "papyrocentric" environment in which the concept was originally 
> applied. In the online universe as well, "fair use" and asking 
> permission are mutually exclusive. If there is anything 
> "incoherent" going on here, it is your persistence in using a 
> legal term to denote a process that is the exact opposite of 
> what it is meant to denote.

We evidently disagree on this, Sandy. But more than that, even 
after all these iterations it is clear that you have not 
understood what the Fair Use Button does, and what it is for.

If your difficulty grasping what the Button is about and for were 
a representative response on the part of my target community -- 
journal article authors and users -- then I would certainly go 
back to calling the Button the "Request Copy" or "Email Eprint 
Request" Button.

But I suspect that the reason you keep systematically 
misunderstanding it is that there is a conflict of interest: You 
do not *want* it to be true that users asking for and authors 
providing eprints is feasible and fair use, because you are 
worried about what that would imply for books:

Well don't worry: Unlike research journal article authors, book 
authors are not in general interested in giving away their books 
for free, otherwise they would not bother to publish them at all 
(since books are not peer reviewed): They'd simply put them on 
the web for free, without needing to ask anyone's permission, nor 
doing the extra keystroke for each copy requested!

To repeat: It is Fair Use for an author to provide an individual 
paper reprint or a digital eprint to an individual requester if 
he wishes. And it is Fair Use for the requester to read and print 
off and use that eprint. So the Fair Use button is Fair use on 
both ends. And no one is requesting or providing *permission*. 
They are requesting and providing a (digital) *copy*.

Chrs,

Stevan Harnad