Peter, you have put your finger on the problem I've tried to
raise with Stevan's calling his device a "Fair Use
Button." As
discussed earlier, Stevan's claim that an author who has
assigned
all rights to a publisher still retains "fair use"
privileges
with respect to his/her own article is arguable at best,
since
various courts of appeal in the U.S. have divided over the
question of whether copyright law trumps contract law.
Certainly, if a case were to arise and Stevan were the
defendant,
he could try claiming fair use as a defense, and given the
uncertain state of the law in this arena, he might prevail.
However, by calling it a "Fair Use Button," Stevan
is proclaiming
to the uninitiated and unsophisticated (99.9% of the people
would
would use such a device probably know little about the case
law
in this area) that there is no question here about whether
this
is fair use or not. He has already decided the issue by
giving
the device this name!
So, to my mind, this is sleight-of-hand, a form of trickery
that
is going to fool a lot of unsuspecting people. Stevan may
think
this is all common sense, but in fact he is using a term
that has
a specific legal meaning (however vague it may be around the
edges) and yet wants people to believe that it has a
common-sense
meaning, too, which is the meaning HE attributes to it in
his own
linguistic world. Thus I believe it is a disservice to the
community Stevan wants to serve by employing this
legerdemain. In
terms that philosophers use, his is a stipulative definition
disguised as a factual description.
P.S. I actually agree, too, that the practice of an author
sharing a paper with another researcher who requests it, one
request at a time, should be considered as fair use-and
should be
allowed by all publishers anyway. But Stevan doesn't tell us
what
limits, if any, he puts on authors' distributing their
articles
once a contract has been signed and rights transferred. Does
he,
for instance, condone responding to a request to have the
article
posted on a listserv to 1,000 people subscribed to that
listserv?
Does he think it is ok for an author to sell an article for
use
in a course pack for a large course in a non-profit
university,
or in a for-profit university (like Phoenix)? Publishers
would
rightly object to the latter, but theoretically Stevan's
"Fair
Use Button" could be used to respond to such a request.
And if
Stevan doesn't think the latter is fair use, then isn't that
a
request for permission that he would then deny through his
device? Stevan then would, in effect, be doing what any
publisher
does, viz., responding to individual requests and making
judgments about what to allow for free and what to charge
for or
deny.
Sandy Thatcher
Penn State University Press
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