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July 13, 2004

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Listed below are links to weblogs that reference Copyfight: Fair Use in (In)action:

» The conversation continues ... from Confessions of a Mad Librarian
Over at LibraryLawBlog, Peter Hirtle discusses Siva Vaidhyanathan's observation about fair use and librarians, arguing that even figuring out how to put fair use to use is not a straightforward proposition.... [Read More]

» The conversation continues ... from Confessions of a Mad Librarian
Over at LibraryLawBlog, Peter Hirtle discusses Siva Vaidhyanathan's observation about fair use and librarians, arguing that even figuring out how to put fair use to use is not a straightforward proposition.... [Read More]

» Fair Use It or Lose It, Part III from Copyfight
Peter Hirtle, who knows from fair use, responds to my post on Siva Vaidhyanathan's experience with a professor asking to make fair use of his book by arguing for what I'd characterize as the Creative Commons solution: making the author... [Read More]

» Fair Use It or Lose It, Part III from Copyfight
Peter Hirtle, who knows from fair use, responds to my post on Siva Vaidhyanathan's experience with a professor asking to make fair use of his book by arguing for what I'd characterize as the Creative Commons solution: making the author... [Read More]

» Fair Use It or Lose It, Part III from Copyfight
Peter Hirtle, who knows from fair use, responds to my post on Siva Vaidhyanathan's experience with a professor asking to make fair use of his book. He argues for what I'd characterize as the Creative Commons solution: making the author... [Read More]

» Fair Use, Copyright, and a Mike Godwin story from Infothought
There's a lawyer joke: After being convicted at trial, a criminal defendant turns to his lawyer and asks "Where do we go from here?" The lawyer replies, "We? I go back to my office. You go to jail." [Read More]

» Fair Use, Copyright, and a Mike Godwin story from Infothought
There's a lawyer joke: After being convicted at trial, a criminal defendant turns to his lawyer and asks "Where do we go from here?" The lawyer replies, "We? I go back to my office. You go to jail." [Read More]

» Fair Use it Or Lose It - more talking in the Library from Copyfight
There's some interesting repartee going on in The Library, discussions between Siva Vaidhyanathan and Peter Hirtle of LibraryLaw Blog as to the scope of fair use with respect to nonfiction. Hirtle, applying the traditional fair use factors, explains ho... [Read More]

» Fair Use it Or Lose It - More Talking in the Library from Copyfight
There's some interesting repartee going on in The Library, discussions between Siva Vaidhyanathan and Peter Hirtle of LibraryLaw Blog as to the scope of fair use with respect to nonfiction. Hirtle, applying the traditional fair use factors, explains ho... [Read More]

» Fair Use It Or Lose It - More Talking in the Library from Copyfight
There's some interesting repartee going on in The Library, discussions between Siva Vaidhyanathan and Peter Hirtle of LibraryLaw Blog as to the scope of fair use with respect to nonfiction. Hirtle, applying the traditional fair use factors, explains ho... [Read More]

» The conversation continues ... from Confessions of a Mad Librarian
Over at LibraryLawBlog, Peter Hirtle discusses Siva Vaidhyanathan's observation about fair use and librarians, arguing that even figuring out how to put fair use to use is not a straightforward proposition.... [Read More]

Comments

I wonder if you might be interested in checking out a discussion that is going on at mezzoblue
The issue is whether digital manipulation (extreme) of another persons image falls under fair use or is indeed copyright infringement.

The immense response has been made by mostly graphic artists, photographers and web designers who really don't understand the law behind what they are saying. It would be great to hear what you have to say about the question posed by Dave Shea.

Siva, if you don't control the rights, the part of your argument where you said:
"I -- of all people -- would probably not challenge him on it"
is not a factor.

"They should act as if they have the right."

Sigh ...

Dear Peter:

Thanks for your comments.

Authors can't always say up front to what uses their works may be put. First, almost no authors have the cultural capital to demand such specific exceptions from publishers (only one of us is Lawrence Lessig). In my case, creative commons licenses did not exist in 2000 when I signed the contract with Basic.

Several times on the page proofs I amended the copyright statement so it reflected U.S. copyright law instead of the imaginary extreme position that Basic takes as a matter of policy. Every time the production editor ignored my changes.

Publishers, who also depend on fair use, should be smarter and bolder than that. They should have default copyright statements that do a better job of reflecting the loose, imperfect regulatory system that is copyright.

Here is the terrible secret of this example: I don't even have the right to grant permission to this professor. I don't control the rights.

So the college in question ended up using it anyway, sans permission.

If Basic is stupid enough to sue the college, then I would stand with the college against my own publisher. It's not going to happen, though.

And you are right. No fair use calculus is a slam dunk. And my reading could be just as valid as yours. That's one of the reasons that fair use is neither fair nor useful. It's arbitrary EXCEPT IN PRACTICE. This is why professors should not ask permission. They should act as if they have the right. Practice matters.

As Justice Holmes said, "the life of the law is experience."

Siva

Yes, such a statement would be great. No doubt even though the copyright was in his name, all significant exclusive rights were transferred to the publisher, leaving Siva a shell of copyright ownership. (That's what happened to me when I wrote a book.) Putting the copyright statement in Siva's name is then an issue of negotiation in the publishing contract.


My contract with my publisher said the notice would be in my name (this was said to be a "courtesy" and was not difficult to negotiate) but an error caused the copyright statement to be made in the publisher's name after all. I really didn't care; in fact it made more sense to have the publisher's name, since that is the place permission seekers need to go anyway.

Once the rights were transferred to the publisher, the publisher (not Siva) would need to share your spirit in writing such a clear and generous copyright statement.

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