Re: [rights-requirements] Parallel or Complimentary System

[John Erickson <john_erickson@hplb.hpl.hp.com>]

Unfortunately, this lingering in my "Draft" folder for more than a week; BobA's
posting over the weekend reminded me that it was there.

BobA wrote:

> To try to clarify that, I'd like to repeat here the seemingly simple
> question I asked on the phone this morning:
>
> There seem to be those who are comfortable with the statement that
>
> A. "In the US, teachers have a 'fair use' right to certain copyright
> works"
>
> but who are uncomfortable with the statement that
>
> B. "In the US, the US government has granted teachers permission to
> perform certain 'fair use' actions with certain copyrighted works"

> My question is that of what the underlying argument to such a position
> might be, for I am at a loss to understand how one who agrees with (A)
> would not agree with (B), as it is in fact an act of Congress that
> established the 'fair use' right in the first place.

JSE: I don't think that either A or B is true as stated.

As I pointed out in my reply to Pete, fair use cannot be adequately modelled as
a role-based thing; the "role" of the
user can only ever be a crude approximation of the relevant issues of setting,
context/placement, purpose, portion used, portion of resultant work, etc.
Indeed, there are cases where particular use by a "teacher" might indeed be an
infringement, whereas a use by some "corporate guy" might be fair use, when the
attributes of the use are matched against legal precedent. Therefore, I believe
that the *most* that one can say is "given certain attributes of the intended
use and the object in question, there appears to be legal precedent for
(approve:deny) use in that way."

I do think that there is a legitimate question of whether aspects of the
real-world fair use "process" may be approximated, or even accomodated, by DRM
architectures. The possibilities, issues and indeed the risks inherent in this
have been discussed before; two examples are the Burk & Cohen paper ("Fair Use
Infrastructures..."), which was one of the bases for the the requirements
submission by the Samuelson Clinic ("Supporting Limitations...").

<for further argument about the use of role, please see my posting in reply to
PeteS, which also lingered 'way too long in my Draft folder...>

| John S. Erickson, Ph.D.
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