Copyright and Fair Use

[Patricia M Godfrey pmgodfrey@xxxxxxxx]

The copy of Linux Journal (it is August 2002)reappeared out of my
private black hole, so here's a brief rundown of its treatment of fair
use. The article, which is by a lawyer, first makes the point that "fair
use" doesn't necessarily mean what a layman might think fair. The
constitutional right to fair use springs from the same source as
copyright: both are ordered to "Promote the Progress of Science and the
Useful Arts"(Art 1, Sec. 8, cl. 8). Copying is permitted under fair use
for "purposes such as criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship, or research."
We could possibly claim teaching, but that would be stretching it.
	There are, however, other factors specified by Congress that determine
if use is fair.
1. The purpose and character of the use: if one isn't making money from
it, or is teaching or conducting research, those are points in favor of
fair use.
2. The nature of the copyrighted work: it's easier to prove fair use with
a factual work than with one of fiction or fantasy.
3. The amount of the work copied: copying a whole is harder to justify
than judicious quotation.
4. The effect of the use on the potential market for or value of the
copyrighted work. The sidebar expressly states, "This factor may tip the
balance in favor of fair use when there are no other known copies of the
work in existence, where the copyright owner is unidentifiable, or where
there is no ready market by which copies can be sold." The last seems the
most relevant to me in our case, though the first (no other known copies)
is one that I worry about a lot. Literary history shows that
contemporaries' estimates of the worth of literary works are often wildly
off when judged by posterity. Shakespeare's contemporaries thought his
works were popular trash; the work of their time they thought would
"live" was an obscure drama called Gorboduc. I wonder what works
that our descendents might value as we do Shakespeare are disappearing as
the last copy gets deacquisitioned or pupled.
Patricia