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Re: [Phys-l] Phys-L: Re: Symposium on Copyright at a Crossroads



Richard,

It has been well-established that fair use does not include wide spread
distribution of verbatim copies of the entire work. In fact that is why
one of the criteria for determining if the use is "fair" is included in
points 3 and 4:

3. the amount and substantiality of the portion used in relation to
the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of
the copyrighted work.

It is ok to quote brief excerpts in order to comment or criticize on
another's work. But when you copy and widely distribute the entire work
you violate the copyright.

Note that several of my guest commentators are professional writers, who
earn at least part of their income from their written work. Under their
agreements with me, they retain copyright to the content of their
commentaries. I allow this specifically so that they can attempt to
publish their work elsewhere after the 10-day exclusivity period in my
contract with them expires. Many of them do just that. Putting their
works in their entirety on the Internet, which is what happens in
practice to the content of many newsgroups and forums, destroys the
market for their work.

One may argue that research journals and article are fair game. But in
fact, if the work is protected by copyright the same rules apply. In
many cases permission to copy a research article in its entirety can be
obtained without payment of a fee or with the payment of only a modest
fee. However, if the copyright holder declines permission the law is
quite clear. You can't reproduce the whole article.

Indeed, anyone who has been involved in writing and publishing a
textbook knows that permissions have to be obtained unless the material
is clearly in the public domain.

Again, there is both a legal and moral issue here.

Dr. Mark H. Shapiro
Professor of Physics, Emeritus
California State University, Fullerton
Phone: 714 278-3884
FAX: 714 278-5810
email: mshapiro@fullerton.edu
web: http://chaos.fullerton.edu/Shapiro.html
travel and family pictures:
http://community.webshots.com/user/mhshapiro


-----Original Message-----
From: phys-l-bounces@carnot.physics.buffalo.edu
[mailto:phys-l-bounces@carnot.physics.buffalo.edu] On Behalf Of Richard
Hake
Sent: Wednesday, March 08, 2006 12:28 PM
To: phys-l@carnot.physics.buffalo.edu
Subject: [Phys-l] Phys-L: Re: Symposium on Copyright at a Crossroads

In response to my post "Re: Symposium on Copyright at a Crossroads"
[Hake (2006a)], Mark Shapiro (2006), of Irascible Professor fame
<http://irascibleprofessor.com/>, in his Phys-L post of 7 Mar 2006
wrote (my CAPS):

"FAIR USE DOES NOT ALLOW ONE TO REPUBLISH COPYRIGHTED MATERIAL FOR
THE GENERAL PUBLIC, ONLY FOR PERSONAL USE. . . . general
republication of copyrighted materials without permission simply is
another form of theft. Basically, those who republish the work
without permission are stealing from the original authors."

But Mark's interpretation of "fair use" appears to be in directly
contradicted by the U.S. Tax Code, TITLE 17, CHAPTER 1, paragraph
107, as presented by the Cornell Law School at
<http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000107----
000-.html>
or more compactly <http://tinyurl.com/3z3r6> [courtesy
<http://tinyurl.com/create.php>.

According to above provision:

**********************************************
Notwithstanding the provisions of sections 106 and 106A, the fair use
of a copyrighted work, including such use by reproduction in copies
or phonorecords or by any other means specified by that section, FOR
PURPOSES SUCH AS CRITICISM, COMMENT, NEWS REPORTING, TEACHING
(INCLUDING MULTIPLE COPIES FOR CLASSROOM USE), SCHOLARSHIP, OR
RESEARCH, IS NOT AN INFRINGEMENT OF COPYRIGHT. In determining whether
the use made of a work in any particular case is a fair use the
factors to be considered shall include-

1. the purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. the amount and substantiality of the portion used in relation to
the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of
the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of
fair use if such finding is made upon consideration of all the above
factors.
**********************************************

In view of "4" above, Mark might argue that copying copyrighted work
for dissemination to academic discussion list subscribers or the
education community [for examples see Hake (2006b), Becker (2006)],
and Ohanian <http://www.susanohanian.org>, even though for nonprofit
educational purposes, adversely affects the "potential market for or
value of the copyrighted work," and thereby, for example, the income
of the original authors.

But since all such copying of which I'm aware gives proper
attribution to both the author and the source, IMHO it has the effect
of ENHANCING rather that diminishing the value of the copyrighted
work both to the source and to the author. This is because, as I
indicated in my previous post [Hake (2006a)]:

"1. Newspapers and magazines benefit from the free advertising they
receive from discussion-list posters of their copyrighted material.

2. The authors of material that's copyrighted benefit from the
attention and prestige they receive when their articles are more
widely disseminated to the academic and education communities."

Nevertheless, the meaning of "Fair Use" continues to be
controversial, especially with the advent of the "Digital Millennium
Copyright Act"
<http://www.chillingeffects.org/dmca512/faq.cgi#QID601>.

Those who wish to survey the internet literature on "fair use" can
search Google <http://www.google.com/> for ["Fair Use" Copyright]
(without the square brackets but with the quotes) to obtain
16,200,000 hits as of 8 Mar 2006 09:49:00-0800.

Rather than examining each of these hits, it might be better to seek
the WORD on "fair use" at the 6th Annual Symposium on Intellectual
Property: "Copyright at a Crossroads: The Impact of Mass Digitization
on Copyright and Higher Education"
<http://www.umuc.edu/cip/symposium>, 14-16, June 2006. Adelphi, MD,
Hosted by The Center for Intellectual Property at University of
Maryland University College <http://www.umuc.edu/distance/odell/cip/>.


Richard Hake, Emeritus Professor of Physics, Indiana University
The Irascible Curmudgeon
24245 Hatteras Street, Woodland Hills, CA 91367
<rrhake@earthlink.net>
<http://www.physics.indiana.edu/~hake>
<http://www.physics.indiana.edu/~sdi>



REFERENCES [Tiny URL's courtesy <http://tinyurl.com/create.php>. In
case TinyURL folds, I also give the original monster URL. I thank
Keith Tipton for suggesting this safety measure.]

Becker, J. 2006. "Big gaps appear in state, federal test scores,"
Math-Learn post of copy of Mar 7, 2006 2:33 pm, online at
<http://groups.yahoo.com/group/math-learn/message/9211>. Copy of
<http://www.boston.com/news/education/k_12/articles/2006/03/03/gaps_appe
ar_in_state_federal_test_scores/>
or more compactly <http://tinyurl.com/qprag>. See also Hake (2006c).

Shapiro, M. 2006. "Re: Symposium on Copyright at a Crossroads,"
Phys-L post of 7 Mar 2006 17:59:12-0800; online at
<https://carnot.physics.buffalo.edu/archives/2006/03_2006/msg00028.html>
.

Hake, R.R. 2006a. "Re: Symposium on Copyright at a Crossroads" online
at <http://listserv.nd.edu/cgi-bin/wa?A2=ind0603&L=pod&O=D&P=6224>.
Post of 7 Mar 2006 17:32:46-0800 to AERA-J, AERA-L, ITFORUM,
Math-Learn, Phys-L, PhysLnrR, POD, & STLHE-L.

Hake, R.R. 2006b. "Proof of Learning at College," online at
<http://listserv.nd.edu/cgi-bin/wa?A2=ind0602&L=pod&O=D&P=21791>.
Post of 27/28 Feb 2006 to AERA-L, AERA-J, ITFORUM, Phys-L, PhysLrnR,
POD, and STLHE-L. Evidently DELETED from the ITFORUM archives by
ITFORUM moderator Bev Ferrell.

Hake, R.R. 2006c. "Unraveling of NCLB," online at
<http://lists.asu.edu/cgi-bin/wa?A2=ind0603&L=aera-l&T=0&O=A&X=2AFF71184
B63087B4B&Y=rrhake%40earthlink.net&P=574>,
or more compactly <http://tinyurl.com/fr3ha>. Post of 3 Mar 2006
11:33:27-0800 to AERA-L, ARN-L, Math-Teach, Math-Learn, & PhysLrnR.

Ohannian, S. 2006. Newsletter with archives at
<http://susanohanian.org/lists/announce/archives.html>. To subscribe
go to <http://susanohanian.org/lists/announce/subscribe.html>.
Ohanian is the winner of the 2003 National Council of Teachers of
English [NCTE <http://www.ncte.org/>] George Orwell Award for
Distinguished Contribution to Honesty and Clarity in Public Language.


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