From: Kevin Smith <[log in to unmask]>
Date: Wed, 4 Sep 2013 12:11:26 +0000

To reply to Sandy's question, I must again insist that there is no
"original meaning" of fair use, a phrase he seems to insist on.  Fair
use is not like a cat or dog, subject to a clear definition (rather
like Mr. Gradgrind's horse).  Instead, fair use is a set of
instructions about how to think about particular situations and the
totality of circumstances that surround them.  So in answer to the
question how I would distinguish between a permissible fair use and an
infringing derivative work, I will give the typical lawyer's answer --
it depends.  It depends, as always, on the specific facts and
circumstances of the use in question.  There is no way to draw the
line a priori.  So give me some facts and I can give you an opinion,
but speculation untethered from a concrete situation is useless.

And before he asks, the ARL Code to which Sandy refers so often and
with such disdain, is not an attempt to define fair use; it is simply
an elaboration of the kind of thinking that individuals can engage in
when considering recurring situations.  It is, if you will, a more
detailed set of instructions for thinking about fair use when engaged
in common library activities, based on a combination of the practice
of many libraries over the years and the approach to the fair use
analysis that the courts have outlined over its long history.

Kevin

Kevin L. Smith, M.L.S., J.D.
Director, Copyright and Scholarly Communication
Duke University Libraries
Durham, NC  27708
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-----Original Message-----
From: Sandy Thatcher <[log in to unmask]>
Date: Tue, 3 Sep 2013 09:44:25 -0500

To be clear, I have no interest in limiting the "flexibility" of fair
use as a vehicle for adapting copyright law to shifting technologies
and other new circumstances. That is indeed its chief virtue.  And it
is a virtue that serves the interests of copyright owners as much as
it does the interests of users.  But a concept can be stretched so far
beyond its original meaning that it loses its effectiveness also. Fair
use is probably best employed as an adjunct to limitations and
exceptions, which being targeted and specific offer much greater
certainty to those concerned with copyright questions, rather than as
the first resort for litigants.  It seems that the ARL and some other
groups are now favoring fair use over any other approach, abandoning
for instance the effort to provide specific guidance for use of
"orphan works," and this is bound to result in more litigation, not
less. The trend also seems to be toward equating fair use with
"re-purposing" of any kind and making that the principal touchstone of
what fair use is. This becomes problematic, among other reasons,
because it makes fair use into a general tool for displacing the right
of copyright owners to control "derivative" uses, which are assigned
to owners under the law. I would ask Kevin how, if fair use is just
using copyrighted works for a different purpose, he would distinguish
between what is fair use and what is an example of derivative work.

Sandy Thatcher


> From: Kevin Smith <[log in to unmask]>
> Date: Fri, 30 Aug 2013 12:26:59 +0000
>
> The fundamental misunderstanding here is in the use of the phrase "the
> original meaning" of fair use.  The simply is no Ur-standard against
> which all later developments are judged.  There is no easy distinction
> between cats and dogs in common law, to adopt Sandy's unfortunate
> metaphor; each Judge must decide which is which.  And we should
> remember that fair use is common law -- a shifting paradigm designed
> to adapt the rigidity of the law to a changing environment.  Fair use
> was first articulated by Justice Joseph Story in 1841, long before
> either Pierre Laval or Roy Orbison was born.  For most of its
> existence, it remained judge-made law that focused not on some defined
> standard, but on a set of guidelines for case-by-case assessment of
> the equities.  When Congress wrote fair use into the law for the first
> time in 1976 they stated quite clearly that they were indicating
> approval of that process, but not trying to freeze it or impede its
> evolution.  The Supreme Court has likewise always resisted the
> temptation to set out a definitive set of requirements for fair use to
> replace the "balancing test." Like it or not, we can disagree with a
> particular court's analysis or the way it assesses what is fair in a
> given situation, but we simply have no scriptural truth by which to
> dismiss any later innovation.  We are stuck with evolution (or, to
> vary the zoological metaphor, we could say that fair use is turtles --
> that is, circumstantial analysis -- all the way down).
>
> I agree that not everything is fair use -- fair use still depends on a
> fact-driven balancing of the equities in a particular case -- and also
> that specific exceptions, such as those proposed by Public Knowledge,
> are very useful.  But specific exceptions do not give us the
> flexibility to adapt to new situations and, especially, new
> technologies, that is the great gift of fair use.
>
> I believe Public Knowledge is proposing specific exceptions to reduce
> the need for, and the cost of, litigation, but always as a supplement
> to, not a replacement for, fair use.  Indeed, in the first report on
> copyright reform that one encounters on Public Knowledge's web site,
> which deals with fair use, we find proposals for strengthening that
> provision (by, for example, by adding "incidental uses,
> non-consumptive uses and personal non-commercial uses" to the preamble
> of section 107 as part of the list of favored purposes for the fair
> use analysis) but no indication at all that PK things fair use should
> be hardened into a rigid test or replaced by specific exceptions.
> Indeed, much of the report is dedicated to the irreplaceable role that
> fair use places in our copyright system, and it states: "no model that
> can completely remove unpredictability from a flexible system, though
> proper understanding of case law and community norms can help. This
> Report focuses on another important method for increasing
> predictability without unduly sacrificing flexibility: Congress can
> update the general Section 107 framework... without putting in place
> specific parameters that might limit the flexibility of the doctrine
> over time."
>
> Kevin
>
> Kevin L. Smith, M.L.S., J.D.
> Director, Copyright and Scholarly Communication Duke University
> Libraries Durham, NC  27708 [log in to unmask]