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]

-----Original Message-----
From: Sandy Thatcher <[log in to unmask]>
Date: Wed, 28 Aug 2013 22:18:56 -0500

As my last post made clear, I have no objection to experimentation of
the kind that Kevin applauds here. I just think that, conceptually, it
is unwise to try justifying everything under the rubric of fair use.

The more its meaning is stretched, in the way it has been by the Ninth
Circuit and other courts that have followed its lead, the less useful
it becomes and the farther away it moves from the original meaning.

if you begin calling all animals cats, then eventually you lose the
ability to identify dogs.

Sandy Thatcher

P.S. I might add that Public Knowledge appears to agree, in the way it
has been making proposals for copyright reform, by carving out
specific exemptions rather than trying to bring everything under the
umbrella of fair use.


> From: Kevin Smith <[log in to unmask]>
> Date: Wed, 28 Aug 2013 12:22:24 +0000
>
> The purpose of fair use, and of copyright in general, of course, is
> not to protect the investment of publishers.  What fair use is doing
> in this environment is supporting needed competition for new markets.
> It is not clear, from the perspective of authors or customers of
> traditional publishers that they really are thinking beyond the
> container, even if they attend panels on that topic.  For example,
> restrictions on ILL that require libraries to print an article before
> sending it to a recipient seem intent on reproducing the
> inconveniences of print in the digital world.  So does a restriction
> on an e-book to the alleged number of loans possible with a print
> copy.  But while many publishers seem bound to the idea, and the
> limitations, of the print container, fair use allows others to
> experiment with new models.  No publisher, for example, would or could
> create an index for 12 million digital books; protecting their
> investment would prevent publishers from doing that, while fair use
> has allowed (so far) the HathiTrust to provide such a service.  The
> most likely beneficiaries of this freedom to experiment, in the world
> of scholarship at least, are the academic authors who, after all, are
> the intended beneficiaries of copyright.
>
> Kevin L. Smith, M.L.S., J.D.
> Director, Copyright and Scholarly Communication Duke University
> Libraries Durham, NC  27708 [log in to unmask]