From: Kevin Smith <[log in to unmask]>
Date: Fri, 10 Apr 2015 00:37:36 +0000

Anne did not say that the use violated a term in the contract.  Fair
use is a statutory right granted by the courts and by Congress. It
authorizes certain uses beyond what a the terms of a contract allow,
unless the contract explicitly waives fair use or asserts that the
authorized use are the only uses permitted.  As long as we avoid such
language, fair use, section 108, etc. are available as a supplement to
whatever the contract says.  So Anne's strategy of opting for silence
is sound.

Kevin


Kevin L. Smith, M.L.S., J.D.
Director, Copyright and Scholarly Communications
Duke University Libraries

Sent from my iPad

> On Apr 9, 2015, at 8:19 PM, LIBLICENSE <[log in to unmask]> wrote:
>
> From: Sandy Thatcher <[log in to unmask]>
> Date: Thu, 9 Apr 2015 00:07:47 -0500
>
> How, exactly, does fair use come into play if there are specific terms
> in a license that you are violating because you think fair use gives
> you the right to do so?  Is there any case where a judge has decided
> that fair use trumps contract law?
>
> Sandy Thatcher
>
>
>> From: "Anne E. McKee" <[log in to unmask]>
>> Date: Wed, 8 Apr 2015 09:59:42 -0700
>>
>> Do what we (GWLA) do:  when the licensor refuses to put any language
>> in the license that refers to Fair Use, we just request to hold
>> silent.  That means the prevailing law (fair use) comes into play if
>> there is a problem down the line.  Learned this little trick from Dan
>> Iddings at PALCI several years ago.
>>
>> And if it helps any; GWLA has begun deleting any references to CONTU
>> from licenses in the past year.  Once again-fair use comes into play.
>>
>> Anne E. McKee, M.L.S.
>> Program Officer for Resource Sharing
>> GWLA