Re: Fair-Use/Schmair-Use...

From: Stevan Harnad <harnad_at_PRINCETON.EDU>
Date: Sat, 4 Aug 2007 13:44:20 -0400

On Sat, 4 Aug 2007, Sandy Thatcher wrote:

> You obviously have disdain for legal terminology and copyright law. But
> law,
> like science, depends upon careful use of technical terms. Would you
> sanction
> casual use of technical terms from science that could create confusion in
> the
> public mind?

No, Sandy, in science I would not; but in the case of these legal terms
and concepts -- applied to a new medium that lawyers neither understand,
nor one to which their obsolescent terms and concepts are even coherently
applicable -- it is the "technical terms" that are the confused ones,
and what is needed is some common sense in their stead, to dispel the
confusion they create in the public mind.

Chrs, Stevan

> > On Wed, 1 Aug 2007, Sandy Thatcher wrote:
> >
> > > Sorry, Stevan, but if the author has the option to deny sending the
> > > article
> > > (on your second alternative), then in effect the author is either not
> > > giving permission to the requester to use it for the stated purpose or
> > > is
> > > making it more difficult for the requester to gain access to the
> > > article,
> > > and neither of these is properly considered a matter of "fair use."
> > > Fair
> > > use occurs without any process of permissioning involved, and it is
> > > not a
> > > matter of access anyway but of use; the requester can still make "fair
> > > use"
> > > of the content of the article when accessed in another manner.
> >
> > Quite the opposite, Dear Sandy! All it takes is common sense (and
> > abstention
> > from legalistic mumbo-jumbo that has no counterpart in the real world!):
> >
> > I do some research. I discover something. I write it up. I submit it to
> > a
> > journal for peer review, and, if accepted, publication. I deposit the
> > final
> > accepted draft in my Institutional Repository. If my publisher endorses
> > immediate Open Access self-archiving, I make the deposit Open Access. If
> > my
> > publisher prefers an embargo (and I feel like complying!), I make the
> > deposit Closed Access. A would-be user uses the Button to request a copy
> > of
> > the deposit for research purposes. If I choose to do so, I click to
> > authorise the emailing of a copy to that user for research purposes.
> >
> > End of story. Perfectly simple. Exactly the same as what has been going
> > on
> > for a half century, with requests for reprints by mail, but it has now
> > been
> > adapted and optimised for the online era.
> >
> > I can think of no reason I would refuse to send an eprint to a requester
> > for
> > research purposes, but, let's say, if I discover somehow that the
> > requester
> > wants to use it to promote racism or terrorism, I might refuse.
> > Absolutely
> > nothing hangs on this. It's completely irrelevant to the point of
> > substance
> > under discussion.
> >
> > The "fair use" is the requester's, if I send him the eprint, and mine,
> > if I
> > decide to send him the eprint. That's transparent, and fits intuitively
> > with
> > what we mean by "fair use." But if there is some convoluted technical
> > reason
> > why you would prefer to call that something other than "fair use," call
> > it
> > "schmair use" and let's leave it at that.
> >
> > Best wishes,
> >
> > Stevan Harnad
Received on Sat Aug 04 2007 - 18:49:43 BST