Several people have emailed to let me know that some commenting is going on at the Volokh Conspiracy over what qualifies as “fair use.” Its cool that some experts in law might chime in. Check it out.
From what I gather, the conversation is just starting, but one of the commentators pointed out one glaring fact — Wiley didn’t acknowledge that the work was fair use, but “granted their permission” to be published. What Wiley should have done with this issue was to be specific whether or not this was Fair Use.
By not stating clearly, Wiley has not closed its door to other bloggers that attempt similar blog posts. Bloggers who may not have resources to defend themselves when intimidated.
I’ve seen many comments criticizing Wiley for not addressing the fair use question.
First, we really should stop blaming Wiley. This situation arose from the actions of an employee of the Society of Chemical Industry, not Wiley. This situation was resolved by the SCI, not Wiley. As far as I can tell, Wiley was never involved in the situation.
However, regardless of what organization is involved, the copyright holder has absolutely no responsibility to address the fair use issue. Alleged infringers need to justify their use to the copyright holder, not the other way around.
Furthermore, Shelley didn’t ask SCI to address fair use. She asked for permission. SCI responded to the request that was made.
Fair use allows you to use copyrighted material even when the copyright holder refuses to give you permission. It’s ludicrous to expect any copyright holder to give you permission to ignore a refusal of permission.
I know this thread is long forgotten, but someone just posted this very creative explanation of copyright law on the Ecological Society of America’s list-serve. I’m sure it’s been around awhile. In case you hadn’t seen it…
(Fair use is briefly explained near the end.)
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