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Archiver > GEN-MEDIEVAL > 2002-02 > 1013144911


From: "Todd A. Farmerie" <>
Subject: Re: Contracts And Fair Use
Date: Thu, 07 Feb 2002 22:08:31 -0700
References: <86.163d5f87.29944a2a@aol.com>


wrote:
>
> Please note that quoting works dealing with scholarship and
> research are generally not an infraction of the law.

This only applies to quoting them within the bounds of fair use.
Were you allowed all quoting, as long as the goal is scholarly,
then you could quote entire works and give them away, depriving
the original author of the fruits of their labor. This is not
the case.

> The law below, however, makes it clear that in scholarly works and areas
> where new research is being done, the right to make fair-use quotes without
> permission is everyone's inalienable right under the provisions of the law.

Yes, "fair use" is, by definition, legal but what does "fair use"
mean?

> One would assume that this is 'fair use' just enough to get the idea across.

And in so doing, one would assume wrong. You do not have the
inherent right to "get the idea across" if that means reproducing
the item in its entirety, for example. Fair use also requires
consideration of the proportion of the whole work and whether the
other person will be financially harmed (actually or
theoretically) by quoting a substantial portion of the work.

> Also, paraphrasing content in review is quite legal as well.

Writing about facts in your own words is perfectly legal. This
protection is not as clear if you take the author's words and
just swap in a few words of your own here and there. You should
not try to paraphrase, but rather present the facts from
scratch. Likewise, to do so basing the summary entirely on the
research of another and not giving them credit for the original
analysis may be (generally) legal, but it is still not ethical.

> It would seem that even if I have made some
> errors in the past (which is unknown even to me) that the lack of real market
> value of such posts and the purpose for which the quotes are being used --
> that is, scholarly information and research for educational purposes -- would
> relieve me of liability for infringement.

This may seem at first to be the case, but the posts obviously
have real market value - after all, you are publishing them and
people are paying money to purchase the publication - the very
definition of market value. You are thereby not only profiting
from their work (and the fact that your expenses approach or
consume your receipts does not change the fact that you are
selling the product), you also are inhibiting the ability of the
author to publish their own posts and sell the product, or to
sell the rights to publish their posts to someone else.
Likewise, the "research and educational use" exclusion does not
apply to items being sold, which your journal is.

> I think the law below makes it clear
> that I can continue this work as long as I am quite prudent and ask for
> permissions religiously when I find something worthy of reprinting.

If you obtain explicit permission from every author for every
specific item, then there is no violation.

taf


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