Re: Fair-Use/Schmair-Use...

From: Stevan Harnad <>
Date: Fri, 17 Aug 2007 03:08:07 +0100 (BST)

On Thu, 16 Aug 2007, Sandy Thatcher wrote:

> If there is anything fundamental to "fair use," both in legal and even
> common sense terms, it is that a request for permission is NOT part of the
> process. But the "Fair-Use Button" is explicitly set up as a process for
> requesting permission from a potential user to the author.

No, Sandy, it is not set up as a process for requesting permission. It is
up as a process for requesting a copy (from the author). And both the author
providing that copy and the requester using it are Fair Use.

> How this is "transparent" and "not tortured" is beyond me. It perverts the
> whole concept of fair use.

It provides access to papers that have been deposited as Closed Access,
because of
a publisher embargo, instead of being deposited immediately as Open Access.

Why you are finding this so difficult to understand is anything but
transparent to

> Stevan, your stubborn adherence to this terminology IS potentially
> confusing, and it has nothing to do with the "papyrocentric" environment
> in which the concept was originally applied. In the online universe as
> well, "fair use" and asking permission are mutually exclusive. If there is
> anything "incoherent" going on here, it is your persistence in using a
> legal term to denote a process that is the exact opposite of what it is
> meant to denote.

We evidently disagree on this, Sandy. But more than that, even after all
iterations it is clear that you have not understood what the Fair Use Button
and what it is for.

If your difficulty grasping what the Button is about and for were a
representative response on the part of my target community -- journal
article authors and users -- then I would certainly go back to calling
the Button the "Request Copy" or "Email Eprint Request" Button.

But I suspect that the reason you keep systematically misunderstanding
it is that there is a conflict of interest: You do not *want* it to be
true that users asking for and authors providing eprints is feasible
and fair use, because you are worried about what that would imply for books:

Well don't worry: Unlike research journal article authors, book authors
are not in general interested in giving away their books for free,
otherwise they would not bother to publish them at all (since books are
not peer reviewed): They'd simply put them on the web for free, without
needing to ask anyone's permission, nor doing the extra keystroke for
each copy requested!

To repeat: It is Fair Use for an author to provide an individual paper
reprint or a digital eprint to an individual requester if he wishes. And it
is Fair Use for
the requester to read and print off and use that eprint. So the Fair Use
button is
Fair use on both ends. And no one is requesting or providing *permission*.
are requesting and providing a (digital) *copy*.


Stevan Harnad

> Sandy Thatcher
> Penn State University Press
> > On Mon, 6 Aug 2007, Peter Hirtle wrote:
> >
> > > I for one am in agreement 100% with Sandy Thatcher on this. We already
> > > are suffering confusion because of the ill-advised decision to use
> > > terms like "self-archiving" and "open archive," both of which have
> > > nothing to do with archives or the permanent retention of knowledge.
> >
> > Both terms were perfectly fine for providing online access (permanently,
> > of course).
> >
> > But "open archive" then went on to denote OAI-compliant and
> > interoperable, but not necessarily Open Access, so "Open Access" was
> > needed as an extra descriptor. "Repository" was (and is) of course
> > entirely superfluous ("archive" would have done just fine), but now
> > "Institutional Repository" has consolidated its supererogatory niche, so
> > OA IR is what we have to make do with.
> >
> > > Now we have proposal to use the term "fair use" in a manner that has
> > > nothing to with either the American concept of "fair use or the
> > > British concept of fair dealing.
> >
> > The "American concept of fair use or the British concept of fair
> > dealing" comes from the paper era, and does not fit the online era,
> > especially for research. So they have to be adapted and updated. Not the
> > online era to the antique terminology, but the terminology to the online
> > era.
> >
> > The adaptation needs to be natural, commonsensical and transparent, not
> > tortured and procrustean, attempting to resurrect obsolete, inapplicable
> > and incoherent usages of "fair use" by insisting on fidelity to defunct,
> > papyrocentric intuitions, consigning the commonsense ones to "schmair
> > use." That would be pedantry, not progress.
> >
> > > Harnad's proposal would just further obfuscate what is meant by both.
> > > Further, using the term suggests a specific legal basis for the
> > > action, when in reality the actions may be authorized by license.
> > > Schmair use it is... Peter B. Hirtle CUL Intellectual Property Officer
> > > Technology Strategist Cornell University
> >
> > It is *fair use* -- legally as well as commonsensically -- to email a
> > copy of your article to an eprint requester. It is fair use -- legally
> > as well as commonsensically -- for the requester to read and use that
> > emailed copy. End of story. The rest would just be self-imposed
> > confusion and obfuscation. One should update one's understanding of
> > "fair use" rather than trying to consign these perfectly natural,
> > contemporary and ubiquitous instances to "schmair use."
> >
> > (By the way, I'd started calling it the "Fair Use" Button instead of the
> > "Eprint Request" or "Request Copy" Button, inspired by someone else
> > (I've forgotten who: felicitous first-coiner please identify thyself!)
> > to call it that, because that made the Button's purpose and use far more
> > transparent and comprehensible, intuitively, and people at last
> > understood what the Button was really about, and for. Does anyone really
> > imagine that this is the time to call it the "Schmair Use" Button, out
> > of fealty to the Dark-Ages origins of the term "Fair Use"?)
> >
> > "How the Immediate-Deposit/Optional-Access Mandate + the 'Fair Use'
> > Button Work"
> >
> >
> > "Get the Institutional Repository Managers Out of the Decision
> > Loop"
> >
> >
> >
> > Stevan Harnad
Received on Fri Aug 17 2007 - 03:08:53 BST

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