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

[Sandy Thatcher <sgt3@psu.edu>]

Peter, you have put your finger on the problem I've tried to 
raise with Stevan's calling his device a "Fair Use Button." As 
discussed earlier, Stevan's claim that an author who has assigned 
all rights to a publisher still retains "fair use" privileges 
with respect to his/her own article is arguable at best, since 
various courts of appeal in the U.S. have divided over the 
question of whether copyright law trumps contract law.

Certainly, if a case were to arise and Stevan were the defendant, 
he could try claiming fair use as a defense, and given the 
uncertain state of the law in this arena, he might prevail. 
However, by calling it a "Fair Use Button," Stevan is proclaiming 
to the uninitiated and unsophisticated (99.9% of the people would 
would use such a device probably know little about the case law 
in this area) that there is no question here about whether this 
is fair use or not. He has already decided the issue by giving 
the device this name!

So, to my mind, this is sleight-of-hand, a form of trickery that 
is going to fool a lot of unsuspecting people. Stevan may think 
this is all common sense, but in fact he is using a term that has 
a specific legal meaning (however vague it may be around the 
edges) and yet wants people to believe that it has a common-sense 
meaning, too, which is the meaning HE attributes to it in his own 
linguistic world. Thus I believe it is a disservice to the 
community Stevan wants to serve by employing this legerdemain. In 
terms that philosophers use, his is a stipulative definition 
disguised as a factual description.

P.S. I actually agree, too, that the practice of an author 
sharing a paper with another researcher who requests it, one 
request at a time, should be considered as fair use-and should be 
allowed by all publishers anyway. But Stevan doesn't tell us what 
limits, if any, he puts on authors' distributing their articles 
once a contract has been signed and rights transferred. Does he, 
for instance, condone responding to a request to have the article 
posted on a listserv to 1,000 people subscribed to that listserv? 
Does he think it is ok for an author to sell an article for use 
in a course pack for a large course in a non-profit university, 
or in a for-profit university (like Phoenix)? Publishers would 
rightly object to the latter, but theoretically Stevan's "Fair 
Use Button" could be used to respond to such a request. And if 
Stevan doesn't think the latter is fair use, then isn't that a 
request for permission that he would then deny through his 
device? Stevan then would, in effect, be doing what any publisher 
does, viz., responding to individual requests and making 
judgments about what to allow for free and what to charge for or 
deny.

Sandy Thatcher
Penn State University Press