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Lessig defends fair use

Orielly.com article about the Kahle v. Ashcroft Case. It gives an excellent analysis of what is to happen post Eldred.

A long quote from Larry Lessig (hope it qualifies as fair use!)

Copyright owners and their lawyers are likely to continue advising would-be copiers that they are infringers even when the proposed copy would be a fair use; and the copiers will be reluctant to provoke litigation over the issue. We mentioned the Little Rascals case. The Copyright Society of the U.S.A. advises on its website that the copying even of just a few seconds of a movie or a television program is not fair use: ?if film clips or photographs from motion pictures, television programs, or other sources are used, consent is required from the copyright owner to use clips or photographs in a motion picture, no matter de minimis or short.? That is not the law, as we has pointed out. Recently the New York Review of Books published a newly discovered notebook entry by Virginia Woolf, and a note at the end of the article states: ?Copyright ? 2003 by the Estate of Virginia Woolf. No part of this text may be reproduced without the express prior consent of Hesperus Press.? No part? That is ridiculous. A journalist, biographer, literary critic, or historian writing about Virginia Woolf or Lady Ottoline would be entitled by the fair use doctrine to quote a brief passage from the article. The note is pure bluff, but a public-domain publisher threatened by a lawyer representing Hesperus Press with legal action would think twice about publishing even the briefest passage without consent. Someone in Eldred?s shoes would worry that if, even after exhaustive inquiry justified him in believing that there was no living owner of the copyright on a work that he wished to publish, a copyright owner should jump out of the woodwork and seek to enjoin publication, the ensuing legal struggle would cost more than it was worth. In Margaret Atwood?s recent novel Oryx and Crake, the author thanks ?John Calder Publications and Grove Atlantic for permission to quote eight words from Samuel Beckett?s novel, Mercier and Camier.? Eight words? Please. Atwood, a highly successful author, can afford to negotiate with two publishers for permission to quote eight words; other authors cannot; and in any event the time and expense required to make and process such a request are a social waste. According to the copyright officer at one distinguished university press, the press presumes that if you come to them asking for permission to quote, the quoted material is not within the scope of fair use. But if the copyright officer senses that the person he?s talking to is a complete novice?in his words, ?blind and lame??he will instruct him on the fair use privilege, but this does does not happen very often. The same press instructs its authors as follows with regard to fair use: ?Permission is not required for brief excerpts quoted for the purpose of scholarly review or analysis or for supporting arguments. This is clearly ?fair use.? In determining whether a use is ?fair,? a number of factors must be considered, but extensive quotation from a chapter or article, or the reproduction of an illustration or a complete poem can rarely be considered ?fair use.?

This is somewhat vague, and very narrow. Another distinguished university press instructs its authors that “in general, poetry requires permission when quoted for any purpose other than literary analysis or commentary?. You may quote from published prose works in copyright if you are making fair use of the work. How much is ?fair? has never been spelled out, but usually you may quote up to 1,000 words from any book-length work of prose without specific permission as long as you acknowledge author, title, and publisher?. The number of quoted words considered fair use may be much smaller for a shorter published work (an article, short story, or letter, for instance). Do not use any complete unit, such as a case history, letter, or complete description, even if it is less than 1,000 words, without permission.”

Among the mistakes in the quoted passage are the implication that no quotations of poetry are fair use; the arbitrary 1,000-words ?safe harbor?; the mistaken implication that copyright law requires acknowledgments of fair use copying; and the assertion that copying a ?complete unit? can never be fair use. The impression conveyed is of a fair use privilege far narrower, and therefore a copyright owner?s right fair broader, than the law recognizes. Crews?s study, cited earlier, similarly concludes that universities adopt guidelines for their faculty and librarians that are excessively conservative with regard to the fair use privilege.
These examples could be multiplied indefinitely.

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