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



Hi all-
The point that Dick seems to be missing is that every case is decided on its own merits and in each case the judge determines what are the applicable facts. I would guess that every experienced lawyer will tell you that he/she loses in court when the judge agrees with his/her adversary that the applicable facts are different from the facts that the experienced lawyer is advancing to the court.
In language that even I can understand, I may contend that I have copied the material in question solely for purposes of criticism and news reporting. The judge is nevertheless free to find - contrary to my sincere convictions and contentions - that my intent was to deprive the author of royalties and, in the process, advance my career. In that event, it is incredibly expensive, and extremely difficult to persuade a reviewing court to reverse the judge's decision.
Intro to American Law 101.
Regards,
Jack

On Wed, 8 Mar 2006, Richard Hake wrote:

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_appear_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=2AFF71184B63087B4B&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.


--
"Trust me. I have a lot of experience at this."
General Custer's unremembered message to his men,
just before leading them into the Little Big Horn Valley