From: Alfred Fry <[log in to unmask]>
Date: Mon, 26 Nov 2012 15:17:17 +0000

I've been too busy to follow this entire discussion, but I'd like to
answer these questions.  I'm speaking for myself, not Ms. Hulbert or
anyone else.

"1) A.Why do you assume that ILL falls under fair use instead of Sec.
108, for which the CONTU guidelines on ILL were specifically designed:
 http://old.cni.org/docs/infopols/CONTU.html ?"  I'll come back to
this.

"Do you think that fair use allows for all copying provided under Sec.
108?"  Yes.  At least, in general.  There may be some acts allowed by
108 that are not allowed by 107, but I believe that 107 provides for
ILL.  From 108: "(f) Nothing in this section—(4) in any way affects
the right of fair use as provided by section 107."

"If so, why did Congress bother to pass Sec. 108 if Sec. 107 makes it
superfluous?"  107 does not explicitly and unambigiously allow for
ILL.  108 does.  108 makes librarians feel safe, but 107 doesn't.

Back to the first question.  I don't accept CONTU.  They are
guidelines that interpret the law, not law itself.  I certainly don't
accept CONTU as guidelines to fair use.

So, let's look at 107.

First, you should know that I don't work in ILL.  If I did, I'd have
more detailed guidelines that elaborate on the points here.  Some ILL
requests would require individual fair use determinations.  Some ILL
requests would not be fair use.

"(1) the purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit educational purposes;"
In my experience, ILL is almost always for education use.  This may
not be true everywhere.

"(2) the nature of the copyrighted work;"  Journal articles are almost
always created for scholarship.  Many books, particularly the ones in
JSTOR, are likely to be created for scholarship as well.  Of course,
there are many books which are clearly commercial endeavors.  This
factor does not always support ILL.

"(3) the amount and substantiality of the portion used in relation to
the copyrighted work as a whole;"  I always assume 100% and assume
that this factor works against ILL.

"(4) the effect of the use upon the potential market for or value of
the copyrighted work."   I believe this is the most critical factor in
determining whether or not a use is fair.  I've been hoping to write
an article on this topic for years, but I haven't had the time.  But
in general, I believe that most ILL has no more than a trivial impact
on the market and value.

I was hoping to have time to answer question 2, about the ARL
guidelines, but I don't.  It's been a while since I've looked at the
guidelines.  In general, I think that fair use policies should be
firmly rooted in the four factors.

Alfred Fry