Re: [PSUBS-MAILIST] Safety of Tourist Submersibles

[Jon Wallace <jonw@psubs.org>]

Sometimes possible are the key words.  The "fair use" doctrine is not 
codified and is a judgment call made by the courts.  No matter what you 
provide for rationale the copyright holder is going to just as zealously 
argue that your reasons do not fall under fair use.  While there are 
some obvious examples of fair use such as copying a single sentence from 
a 2000 page document, copying an entire work or even a significant 
portion of it is probably going to be a tough fight.  Library exemptions 
exist only if there is no direct or indirect commercial advantage 
involved and have to be available to a very wide audience.

Your blog makes some reference to the US Constitution clearly stating 
the purpose of copyright law, however there's nothing in the 
Constitution about copyright.  Copyright is federal law, not 
constitutional, and Title 17, section 106 provides the owner of a work 
"exclusive rights" to that work.  Your blog statement "Any 
interpretation of copyright law that tends to make works inaccessible is 
therefore contrary to the clearly stated purpose of the law." is 
incorrect since it is codified that the owner has exclusive rights to 
their works.  Even the government itself cannot infringe upon an owners 
copyright.

You also state in your blog that if the creator of the work is making no 
effort to make his work available, he can't claim that he is being 
harmed by your doing so.  This is also a misinterpretation on your part 
since Title 17, section 106, provides the owner with exclusive rights to 
his work which means he also has the right not make his work available.  
The owner can make it available to some, and not to others (licensing).  
The owner can refuse to extend a license after its term runs out and 
still hold all rights to his work.  The strategy you speak of in your 
blog of making your own copies of works available based upon "print 
runs"  of the original appears severely flawed to me.  The fact that 
something is "out of print" has absolutely no bearing on the rights of 
the owner to control access to their works.

Lastly, you seem to have chided the librarian who responded to your blog 
saying that they are ethically bound to protect IP rights by suggesting 
that since you have been able to copy complete documents from various 
libraries, and/or have those libraries do the actual copying for you, it 
must somehow be ok.  The fact that someone else ignorant of the law 
allowed you to copy a complete document, or even provided you with a 
complete copy of the document, doesn't mean that they didn't violate the 
law or protect you from copyright infringement if you subsequently 
publish that work.

Jon



On 8/20/2010 5:00 AM, Marc de Piolenc wrote:
> It is sometimes possible to copy the entire work under Fair Use. See 
> my blog entry at http://archivale.com/weblog/?p=527 for a summary, 
> then check the statutes and case law if you don't believe me.
>
> I've made part of my living for nearly thirty years on the basis of 
> Fair Use and the Library Exemptions.
>
> Not that it matters in this case, because the NAS will not go after 
> you, copyright or no copyright. They're in the business of making 
> knowledge available, and their works are rarely reprinted.




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