Re: Permission to use screenshots of databases

["Jack Boeve" <JBoeve@xxxxxxxx>]

[ON BEHALF OF GEORGIA HARPER...]

This is an excellent example of the subjectivity involved in the fair
use analysis. I ran the same test linked to below, based on the facts as
I had them (and I assume Kerry has the exact same facts, no more no
less), and I came out with 4 to 1 in favor of fair use. Interesting, no?

So think about how this subjectivity works in court. If this were a real
case, and you were the judge, you'd observe the arguments for each side
(you'd see how from one perspective, the use looks like a horrendous use
-- from the other, it's the most benign thing imaginable) and you'd
choose what you felt was the right outcome and then you would explain
your decision in an analysis that reflects your conclusion about what is
the right outcome. Probably not a carbon copy of the winning side's
analysis, but enough of their analysis to make the balance go the way
you are convinced it should.

This is what makes risk tolerance in fair use analysis so important. You
*must* be aware of your level of tolerance and understand how it affects
your conclusions. If you are not tolerant of any risk, you are going to
tend to analyze conservatively and then reject any use that isn't a
slam-dunk. If you are tolerant of risk, you're going to tend to analyze
more liberally and accept as fair those uses that others will reasonably
argue are not fair (ie, on the line and can go either way). The thing is
that there are an awful lot of uses that are in the category of
ambiguity because of the subjectivity involved. It's not hard to
understand why there's so much disagreement about whether particular
uses (electronic reserves, for example) are fair or not even among
people on the same side of the issue (ie, academics, librarians and the
lawyers who represent them).

The other important factor is practice. The more fair use cases you have
read, the more you've tried doing fair use analyses, the more likely you
are to have a good sense of how the use will be viewed by different
constituencies (what a consensus would be on each side of the dispute)
and where arguments for or against a particular use are strongest and
where they are weakest. All this is quite a delicate art. That's another
thing that makes it difficult. But this is the test we've got.

g


Georgia Harper
Scholarly Communications Advisor
University of Texas at Austin Libraries
512.495.4653; 512.971.4325 (c)
-----Original Message-----
From: Jack Boeve [mailto:JBoeve@xxxxxxxx]
Sent: Tuesday, July 31, 2007 7:12 AM
To: digital-copyright@xxxxxxxxxxxxxx
Subject: Re: Permission to use screenshots of databases

[On behalf of Kerry Ouellet (KOuellet@xxxxxxx)]

A publisher recently gave me this checklist
http://www.copyright.cornell.edu/policy/Fair_Use_Checklist.pdf to help
me decide whether something falls under fair use. Unfortunately, the
piece we were asking about did not.

Good luck.

______________________
Kerry S. Ouellet
Production Editor
EDC's Center for Science Education
55 Chapel Street
Newton, MA 02458-1060
P: 617-618-2570
F: 617-630-8439
Explore EDC's Center for Science Education at http://cse.edc.org/