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July 7, 2004

Fair Use It or Lose It

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I was honored recently to attend a private book reading by Siva Vaidhyanathan and Larry Lessig at Stanford. Both spoke at length about the future of fair use, revealing a schism in perspective: Siva is generally more hopeful, Larry characteristically pessimistic. Siva suggested that society and the court system might eventually have more promising answers to the current conflicts over copyright; Larry, meanwhile, argued that "fair use is the right to hire a lawyer."

Today, Siva has a sad tale suggesting that most people have begun to agree with Larry -- and worse, that society's gatekeepers of fair use -- librarians, educators, school administrators -- are letting it happen.

The story in a nutshell: a professor at a Northeastern college asked Siva for permission to distribute a copy of a chapter of Anarchist in the Library. "Of course," Siva replied, adding that he really ought not to have asked. The professor responded by forwarding to Siva a note from the college librarian, which warns firmly that "educational purpose is only one of the four determining factors, and that the courts have weighted one of them, the impact on the potential market, heavily in recent cases." Siva, horrified, runs the use of the book chapter through the four-factor test to show that the professor has a slam-dunk "case."

"Does that mean that some silly copyright holder might sue anyway? Sure! [...]

This is the problem with fair use: It is a gamble. If you were confident that the copyright holder would not care or would not bother for fear of bad publicity, then you could go ahead and use the material as the law intended you to do. But we have all been taught that copyright holders are vultures out for a quick and easy meal. This is not always true.

But if we don't make a stand against vultures we might as well be waiting around to become carrion.

[The] important thing to remember here is that if you follow your librarian's advice and ask permission, you are making this entire fair use calculus irrelevant. Why do we need section 107 at all if educators are just going to cower upon the advice of copyright experts on campus?

It is our duty to push the envelope of fair use. And it is our duty to demand that our institutions back us up when threatened by bullying copyright holders who do not respect values of openness and freedom.

The problem with this, as Siva himself admits, is that hiring a lawyer costs a great deal of money, and paying the possible infringement penalties a lot more than that. It may be our "duty" to stand up to the vultures, but few people, and few schools, can actually afford to do it.

I see four main avenues for attacking the problem:

  • Fair use it or lose it. This is, I believe, Siva's main point, and it's important: on a personal level, don't give in to the fear-mongering. Don't be the person who asks Siva, Larry, or Cory Doctorow whether you can make fair use of their books.
  • Use and advocate the use of Creative Commons licenses, not only to make work available but also to help people understand in a tangible way that they are entitled to legitimate uses of creative works.
  • Fortify the fair use gatekeepers. Provide as many resources as we can for faculty members, librarians, systems administrators, school officials, DMCA-takedown compliance officers, legal counsel, etc., to take a stand against the bullies -- not only when push comes to shove and someone files a lawsuit, but in the small, everyday ways that cumulatively alter our perception of what constitutes fair use.
  • Support and advocate supporting legislation that seeks to turn back the tide by providing affirmative protection for traditionally legitimate activities.

That's my take. I'd like to hear yours.

Comments (7) + TrackBacks (0) | Category: IP Use


1. Subdued Citizen on July 8, 2004 8:56 AM writes...

Further on your idea of fortifying fair users (perhaps we should call them "gate openers" rather than "gatekeepers"), how about forming a fair use union whose members would pay premiums for group insurance against the costs of defending legitimate fair use against legal actions?

Permalink to Comment

2. TPB, Esq. on July 8, 2004 9:49 AM writes...

I'm not sure I buy the argument that universities don't have the money to be the vanguard of fair use litigation. In fact, I imagine that they are the only entities with the economic resources necessary to do so. Most universities have budgeted a fixed fee with firms to address certain issues (or at least they did during my time at BC, which has fought on this issue). I would hope that the communication between universities that is inherent in higher learning may someday encourage them to take the gamble and start this challenge.

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3. lizzy m on July 8, 2004 10:33 AM writes...

the "don't be the person who asks for permission you don't need" has long been my favorite argument (since acuff-rose, and since i noticed bands crediting samples in their liner notes sometime around the same time).

Permalink to Comment

4. Donna Wentworth on July 8, 2004 11:21 AM writes...

TPB, Esq. -- I'm not saying that some universities don't have the resources to become fair use litigation vanguards. Some do, and I'm deeply reassured whenever I see a university take a stand. Only that on balance, standing up for fair use in the courtroom has become more and more expensive. The primary mission of a school is to educate, but first, it has to stay open. The sad thing is that the smaller schools that can't afford risk are likely to be over-cautious. The education that the students receive will consequently be the fruits of "permission culture" -- a smaller universe of ideas, fewer opportunities to dig your hands into the dirt, the pervasive attitude that you can passively consume copyrighted materials but shouldn't do much more than that. Ultimately, a second-class education.

Libraries, library associations, and open access advocates are doing wonderful work fighting to preserve traditional freedoms in education. I haven't heard much about universities banding together to do similar work, but perhaps I'm not reading the Chronicle of Higher Education or the Open Access weblog often enough. Tell me about what happened at BC...?

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5. Branko Collin on July 9, 2004 10:58 AM writes...

Not asking Larry, Siva or Cory to fair use their work does not require a lot of courage, as you can be pretty sure that they won't sue you.

Try suggesting fair use of a work by an author that you are certain will sue you. Flaunt that fair use in the face of the copyright holder. Only then will your fair use be meaningful (except of course that you will get your ass sued off, and be held up as an example of what will happen to you if you make use of your skimpy right).

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6. brad brace on July 9, 2004 5:38 PM writes...

_ |__ __| | /_ |__ \| |
| __| | | | (_) | | __/ (__| |_
__ | | | | | | __/ | |/ /_| | | | |
_ | | | '_ \ / _ \ | | / /| '_ \| '__|

The 12hr-ISBN-JPEG Project >>>> posted since 1994
"... easily the most venerable net-art project of all time."

_ | | | '_ \ / _ \ | | / /| '_ \| '__|
-_ | | | |__ ___ | | ) | |__ _ __
_ | __ \ (_) | |
_| |__) | __ ___ _ ___ ___| |_
|_ ___/ '__/ _ \| |/ _ \/ __| __|
|_| _ |_| \___/| |\___|\___|\__|
_ _/ |
_ |__/

> > > > Synopsis: The 12hr-ISBN-JPEG Project began December 30, 1994. A
`round-the-clock posting of sequenced hypermodern imagery from Brad Brace.
The hypermodern minimizes the familiar, the known, the recognizable; it
suspends identity, relations and history. This discourse, far from
determining the locus in which it speaks, is avoiding the ground on which
it could find support. It is trying to operate a decentering that leaves
no privilege to any center.

The 12-hour ISBN JPEG Project
began December 30, 1994

Pointless Hypermodern Imagery... posted/mailed every 12 hours... a
spectral, trajective alignment for the 00`s! A continuum of minimalist
masks in the face of catastrophe; conjuring up transformative metaphors
for the everyday... A poetic reversibility of exclusive events...

A post-rhetorical, continuous, apparently random sequence of
imagery... genuine gritty, greyscale... corruptable, compact,
collectable and compelling convergence. The voluptuousness of the grey
imminence: the art of making the other disappear. Continual visual impact;
an optical drumming, sculpted in duration, on the endless present of the

An extension of the printed ISBN-Book (0-9690745) series... critically
unassimilable... imagery is gradually acquired, selected and re-sequenced
over time... ineluctable, vertiginous connections. The 12hr dialtone...

[ see ]

KEYWORDS: >> Disconnected, disjunctive, distended, de-centered,
de-composed, ambiguous, augmented, ambilavent, homogeneous, reckless...
>> Multi-faceted, oblique, obsessive, obscure, obdurate...
>> Promulgated, personal, permeable, prolonged, polymorphous, provocative,
poetic, plural, perverse, potent, prophetic, pathological, pointless...
>> Emergent, evolving, eccentric, eclectic, egregious, exciting,
entertaining, evasive, entropic, erotic, entrancing, enduring,

Every 12 hours, another!... view them, re-post `em, save `em,
trade `em, print `em, even publish them...

Here`s how:

~ Set www-links to ->

Look for the 12-hr-icon. Heavy traffic may require you to specify files
more than once! Anarchie, Fetch, CuteFTP, TurboGopher...

~ Download from -> /pub/users/bbrace
Download from -> /u/b/bbrace
Download from -> hotline://

* Remember to set tenex or binary. Get 12hr.jpeg

~ E-mail -> If you only have access to email, then you can use FTPmail to
do essentially the same thing. Send a message with a body of 'help' to
the server address nearest you:
bitftp@plearn.bitnet bitftp@dearn.bitnet bitftp@pucc.bitnet
* *

~ Mirror-sites requested! Archives too!
The latest new jpeg will always be named, 12hr.jpeg
Average size of images is only 45K.
Perl program to mirror ftp-sites/sub-directories:

~ Postings to usenet newsgroups:

* * Ask your system's news-administrator to carry these groups!
(There are also usenet image browsers: TIFNY, PluckIt, Picture Agent,
PictureView, Extractor97, NewsRover, Binary News Assistant, EasyNews)

~ This interminable, relentless sequence of imagery began in earnest on
December 30, 1994. The basic structure of the project has been over
twenty-four years in the making. While the specific sequence of
photographs has been presently orchestrated for more than 12 years` worth
of 12-hour postings, I will undoubtedly be tempted to tweak the ongoing
publication with additional new interjected imagery. Each 12-hour posting
is like the turning of a page; providing ample time for reflection,
interruption, and assimilation.

~ The sites listed above also contain information on other cultural
projects and sources.

~ A very low-volume, moderated mailing list for announcements and
occasional commentary related to this project has been established at /subscribe 12hr-isbn-jpeg


This project has not received government art-subsidies. Some opportunities
still exist for financially assisting the publication of editions of large
(33x46") prints; perhaps (Iris giclees) inkjet duotones or extended-black
quadtones. Other supporters receive rare copies of the first three
web-offset printed ISBN-Books. Contributions and requests for
12hr-email-subscriptions, can also be made at, or by mailed cheque/check:
$5/mo $50/yr. Institutions must pay for any images retained longer than 12 hours.


ISBN is International Standard Book Number. JPEG and GIF are types of
image files. Get the text-file, 'pictures-faq' to learn how to view or
translate these images. []

(c) Credit appreciated. Copyleft

1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004

Permalink to Comment

7. Peter Hirtle on July 14, 2004 2:37 PM writes...

I have posted a longish comment on Siva's original posting in the blog (at In it I critique Siva's fair use argument and suggest that copyright management may be an alternative approach to follow. Unfortunately the trackback function didn't seem to work, so you will have to go to the blog to read it.

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