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Peter Hirtle, who knows from fair use, responds to my post on Siva Vaidhyanathan's experience with a professor asking to make fair use of his book. He argues for what I'd characterize as the Creative Commons solution: making the author responsible for asserting affirmatively that people have rights to the work:
Vaidhyanathan, Wentworth, and Finkelstein use [Siva's experience] to discuss how hard it is to use fair use; as Larry Lessig has noted, "fair use in America simply means the right to hire a lawyer." There is a second solution to the problem, however. Namely, Siva could have made clear in the book what users could and could not do with the text. [...]
We can, and should, try to change fair use to make it easier to use. But we should also be as explicit as we can on the uses we allow. For example, on my publications I always try to include the following wording: "Permission is granted for nonprofit educational and library duplication and distribution, including but not limited to reserves and coursepacks made by nonprofit or for-profit copyshops." A statement such as this in Siva's book would have made the whole fair use analysis moot.
While I think that's certainly somethign to be encouraged, it's nothing to do with Fair Use.
Fair Use in explcitly use without any kind of permission (in fact the most important fair uses are those where the rights holder probably wouldn't grant permission if asked).
Right. But fair use isn't working out very well, is it? Which is why people see the need to recreate the only-if-you-can-afford-it right to "fair use" by rebuilding copyright in shades of gray.Permalink to Comment