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July 14, 2004
Fair Use It or Lose It, Part III
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.
I say: Go for it. If copyright is broken, rebuild it with your explicit instructions. And obviously, choose the kind of publishers
that embrace such reconstruction.
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