fair use in Adema 2009


rmas, Sloterdijk und so weiter, and so much
more, a lot in German, and all ‘typed out’ texts. The library section offers a
direct search function, a category function and a a-z browse function.
Dillemuth states that he offers this material under fair use, focusing on not
for profit, freedom of information and the maintenance of freedom of speech
and information and making information accessible to all:

_“The Societyofcontrol website site contains information gathered from many
different sources. W


fair use in Bodo 2015


tating that libraries may not digitize their
entire collections (Rosati, 2014a).
US libraries face a similar situation, both in terms of the narrowly defined exceptions in which libraries
can operate, and the huge uncertainty regarding the limits of fair use in the digital library context. US
rights holders challenged both Google’s (Authors Guild v Google) and the libraries (Authors Guild v
HathiTrust) rights to digitize copyrighted works. While there seems to be a consensus of courts that the
mass digitization conducted by these institutions was fair use (Diaz, 2013; Rosati, 2014c; Samuelson,
2014), the accessibility of the scanned works is still heavily limited, subject to licenses from publishers,
the existence of print copies at the library and the institutional membership held by prospective read


derground of the Old Regime. Cambridge, Mass: Harvard University
Press.
Darnton, R. (2003). The Science of Piracy: A Crucial Ingredient in Eighteenth-Century Publishing.
Studies on Voltaire and the Eighteenth Century, 12, 3–29.
Diaz, A. S. (2013). Fair Use & Mass Digitization: The Future of Copy-Dependent Technologies after
Authors Guild v. Hathitrust. Berkeley Technology Law Journal, 23.
Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the
information soc


another
Dutch reference on digital resale may be just about to follow. IPKat. Retrieved October 08, 2014, from
http://ipkitten.blogspot.co.uk/2014/09/dutch-court-refers-questions-to-cjeu-on.html
Rosati, E. (2014c). Google Books’ Library Project is fair use. Journal of Intellectual Property Law &
Practice, 9(2), 104–106.
Rose, M. (1993). Authors and owners : the invention of copyright. Cambridge, Mass: Harvard University
Press.
Samuelson, P. (2002). Copyright and freedom of expression in historical perspective. J. Intell. Prop. L.,
10, 319.
Samuelson, P. (2014). Mass Digitization as Fair Use. Communications of the ACM, 57(3), 20–22.
Schultz, M. F. (2007). Copynorms: Copyright Law and Social Norms. Intellectual Property And
Information Wealth v01, 1, 201.
Sezneva, O. (2012). The pirates of Nevskii Prospekt: Intellectual property, piracy


fair use in Dekker & Barok 2017


ng transformative use of the collected material. The fact of bringing
it into certain new contexts, in which it can be accessed,
viewed and interpreted, adds something that bookstores
don’t provide. Time will show whether this can be understood as fair use. It is an opt-out model and it proves to
be working well so far. Takedowns are rare, and if they are
legitimate, we comply.
AD

Perhaps related to this question, what is your experience
with users engagement? I remember Sean (from Aaaaarg,
in convers


fair use in USDC 2015


lsevier' s articles

bu.t only for legitimate

and not for wholesale infringement.

U.S. at 219.2

See Eldred,

537

The public interest in the broad dissemination and

use of scientific research is protected by the idea/expression
dichotomy and the fair use doctrine.

2

See Golan v. Holder,

The public interest in wide d1sseminat1on of scientific works

by the fact that copyrights are given only limited

464

15

U.S.

duration.

417, 431-32

132

is also served

See Sony Corp.

(1984).

S.

Ct. 873,


fair use in Mars & Medak 2019


ase (“Sony Corp. of America v. Universal
City Studios, Inc.,” Wikipedia 2015), Universal Studios and the Walt
Disney Company sued Sony for aiding copyright infringement with
their Betamax video recorders. Sony won. The court decision in
favor of fair use rather than copyright infringement laid the legal
ground for home recording technology as the foundation of future
analog, and subsequently digital, content sharing.
Five years later, Sony bought its first major Hollywood studio:
Columbia Pictures. I


fair use in Mars & Medak 2017


ate a position of civil
disobedience.
PJ & AK: Please elaborate the position of civil disobedience. How does it
work; when is it justified?
MM & TM: Legitimating discourses usually claim that shadow libraries fall
into the category of non-commercial fair use. These arguments are definitely valid,
yet they do not build a particularly strong ground for defending knowledge
commons. Once they arrive under attack, therefore, shadow libraries are typically
shut down. In our call for collective disobedience, th


er. The book was removed
each time the plaintiff issued a takedown notice, resulting in minimal damages, but
these people are nonetheless being sued for 500.000 Canadian dollars. Should
Aaaaarg not be able to defend its existence on the principle of fair use, a valuable
common resource will yet again be lost and its founder will pay a high price. In this
lawsuit, ironically, there is little economic interest. But many smaller publishers
find themselves squeezed between the privatization of education whic


fair use in Sollfrank 2018


s, which have not been considered in current legal
settings. And as the 20 years of Ubu’s existence demonstrate, the practice may
be experimental and precarious, but with growing cultural relevance and
reputation it is also gaining in stability.

_Fair Use and Public Interest_

At all public appearances and public presentations Goldsmith and his
supporters emphasize the educational character of the project and its non-
commercial orientation.9 Such a characterization is clearly intended to take
the win


nd the common good.

From a cultural point of view, the project unquestionably is of inestimable
value; a legal defense, however, would be a difficult undertaking. Copyright
law, in fact, has a built-in opening, the so-called copyright exceptions or
fair use regulations. They vary according to national law and cultural
traditions and allow for the use of copyrighted works under certain, defined
provisions without permission of the owner. The exceptions basically apply to
the areas of research and private


n to a third party
is also excluded.11 As Ubu is an online archive that makes all of its records
publicly accessible and, not least, also provides templates for further
copying, it exceeds the notion of a “private copy” by far. Regarding further
fair use provisions, the four factors that are considered in a decision-making
process in US copyright provisions, for instance, refer to: 1) the purpose and
character of the use, including whether such use is of a commercial nature or
is for non-profit educa


d substantiality of the portion used in relation to the
copyrighted work as a whole; and 4) the effect of the use upon the potential
market for the value of the copyrighted work (US Copyright Act, 1976, 17 USC.
§107, online, n.pag.). Applying these fair use provisions to Ubu, one might
consider that the main purposes of the archive relate to education and
research, that it is by its very nature non-commercial, and it largely does
not collide with any third party business interests as most of the materia


ral memory, while the legal situation does not
consider the value of the project as a whole and necessitates breaking it down
into all the individual items within the collection.

This very brief, when not abridged discussion of the possibilities of fair use
already demonstrates how complex it would be to apply them to Ubu. How
pointless it would be to attempt a serious legal discussion for such a
privately run archive becomes even clearer when looking at the problems public
libraries and archives have t


fair use in Stankievech 2016


ociety and
the foundations of any library system. As a result of this freedom,
there are sometimes violations of copyright. However, since
Arg.org is a committed, non-profit community-library, such transgressions occur within a spirit of sharing and fair use that characterize this intellectual community. This sharing is quite different
from the popular platform Academia.edu, which is searchable
by non-users and acquires value by monetizing its articles through
the sale of digital advertising space and a


fair use in Thylstrup 2019


uctures of the analog book and the new
infrastructures of Google Books was symptomatic of the underlying radical
reorganization of information from a state of trade and exchange to a state of
constant transmission and contagion.24

Foregrounding the fair use defense25, Google argued that the public benefits
of scanning outweighed the negative consequences for authors.26 Influential
legal scholars such as Lawrence Lessig, among others, supported this argument,
suggesting that inclusion in a search engine


s whether the ASA is fair, adequate, and reasonable.
I conclude that it is not.”36 Google left the proposed settlement behind, and
appealed the decision of their initial case with new amicus briefs focusing on
their argument that book scanning was fair use. They argued that they were not
demanding exclusivity on the information they scanned, that they didn’t
prohibit other actors from digitizing the works they were digitizing, and that
their main goal was to enrich the public sphere with more information, not to
build an information monopoly. In July 2013 Judge Denny Chin issued a new
opinion confirming that Google Books was indeed fair use.37 Chin’s opinion was
later consolidated in a major victory for Google in 2015 when Judge Pierre
Leval in the Second Circuit Court legalized Google Books with the words
“Google’s unauthorized digitizing of copyright-protected works, creation of a
search functionality, and display of snippets from those works are non-
infringing fair uses.“38 Leval’s decision marked a new direction, not only for
Google Books, but also for mass digitization in general, as it signaled a
shift in cultural expectations about what it means to experience and
disseminate cultural artifacts.

Once again,


If you did it with a single book, you’d be
infringing.” Authors Guild v. Google: Questions and Answers,
. 22.
Peters 2015, 21. 23. Hayles 2005. 24. Purdon 2016, 4. 25. Fair use constitutes
an exception to the exclusive right of the copyright holder under the United
States Copyright Act; if the use of a copyright work is a “fair use,” no
permission is required. For a court to determine if a use of a copyright work
is fair use, four factors must be considered: (1) the purpose and character of
the use, including whether such use is of a commercial nature or is for
nonprofit educational purposes; (2) the nature of the copyrighted work; (3)
the amount and substantiality of th


cknowledged in weighing all the factors, even
assuming Google’s principal motivation is profit, the fact is that Google
Books serves several important educational purposes. Accordingly, I conclude
that the first factor strongly favors a finding of fair use.” _The Authors
Guild et al. vs. Google Inc_., 05 Civ. 8136-DC, United States Southern
District of New York, November 14, 2013,
[http://www.nysd.uscourts.gov/cases/show.php?db=special&id=355](http://www.nysd.uscourts.gov/cases/show.php?db=special&id


l
tools. Dušan Barok’s response to a question about the legal challenges against
Monoskop evidences this stratagematic approach, as he replies that shadow
libraries such as Monoskop operate in the “gray zone,” which to him is also
the zone of fair use.40 Barok thus highlights the ways in which Monoskop
engages with established media infrastructures, not only on the level of
discursive conventions but also through their formal logics, technical
protocols, and social proprieties.

Thus, whereas Goog


.” _Minnesota Law Review_ 94 (5): 1308–1374.
258. Samuelson, Pamela. 2011. “Why the Google Book Settlement Failed—and What Comes Next?” _Communications of the ACM_ 54 (11): 29–31.
259. Samuelson, Pamela. 2014. “Mass Digitization as Fair Use.” _Communications of the ACM_ 57 (3): 20–22.
260. Samyn, Jeanette. 2012. “Anti-Anti-Parasitism.” _The New Inquiry_ , September 18.
261. Sanderhoff, Merethe. 2014. _Sharing Is Caring: Åbe


fair use in Weinmayr 2019


those
that had been sold from being displayed publicly in the
future.[35](ch11.xhtml#footnote-491)

However Prince’s eventual appeal turned the verdict around. A second circuit
court decided that twenty-five of his thirty paintings fell under the fair use
rule. The legal concept of fair use allows for copyright exceptions in order
to balance the interests of exclusive right holders with the interests of
users and the public ‘for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship, or
research’.[36](ch11.xhtml#footnote-490) One requirement to justify fair use is
that the new work should be transformative, understood as presenting a new
expression, meaning or message. The appeal’s court considered Prince’s
appropriation as sufficiently transformative because a ‘reasonable
observer’[37](ch11.xhtml#f


remaining five paintings, and their
infringement claim was returned to the district court meaning that no ruling
had been issued. This pragmatic settlement can be interpreted as a missed
opportunity for further clarification in the interpretation of fair use. No
details about the settlement have been disclosed.[49](ch11.xhtml#footnote-477)

Richard Prince presented himself in his court deposition as an artist, who
‘do[es]n’t really have a message,’ and was not ‘trying to create anything with
a ne


e advice on intellectual property —
which was until recently headlined ‘Own It’.[67](ch11.xhtml#footnote-459)
Here, institutional policies privilege the privatisation and propertisation of
creative student work over the concept of sharing and fair use.

There is evidence that this line of thought creates a self-inflicted
impediment for cultural workers inside and outside art colleges. The College
Art Association, a US-based organization of about fourteen thousand artists,
arts professionals, students and scholars released a report in 2015 on the
state of fair use in the visual arts.[68](ch11.xhtml#footnote-458) The survey
reveals that ‘visual arts communities of practice share a great deal of
confusion about and misunderstanding of the nature of copyright law and the
availability of fair use. […] Formal education on copyright, not least at art
colleges, appears to increase tendencies to overestimate risk and underuse
fair use.’ As a result, the report states, the work of art students ‘is
constrained and censored, most powerfully by


against the grain of [the] market-driven arts
economy, their one recourse for controlling us is copyright.’ Another said:
‘In many cases I have encountered artists’ estates and sometimes artists who
refuse rights to publish (even when clearly fair use) unless they like the
interpretation in the text. This is censorship and very deleterious to
scholarship and a free public discourse on
images.’[71](ch11.xhtml#footnote-455) One scholar declared that copyright
questions overshadowed his entire work


piracy-lectures/>

Andersson, Jonas (2009) ‘For the Good of the Net: The Pirate Bay as a
Strategic Sovereign’, Culture Machine 10, 64–108.

Aufderheide, Patricia, Peter Jaszi, Bryan Bello and Tijana Milosevic (2014)
Copyright, Permissions, and Fair Use Among Visual Artists and the Academic and
Museum Visual Arts Communities: An Issues Report (New York: College Art
Association).

Barron, Anne (1998) ‘No Other Law? Author–ity, Property and Aboriginal Art’,
in Lionel Bently and Spyros Maniatis (


gement against Swedish author Fredrik Colting
for 60 Years Later Coming Through the Rye, a sequel to Salinger’s book. See
note 31.

[36](ch11.xhtml#footnote-490-backlink) ’In determining whether the use made of
a work in any particular case is a fair use the factors to be considered shall
include — (1) the purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit educational purposes; (2) the
nature of the copyrighted work; (3) the amount and subst


Wallace questions the majority’s insistence on analyzing
only the visual similarities and differences between Cariou’s and Prince’s art
works, “Unlike the majority, I would allow the district court to consider
Prince’s statements reviewing fair use … I see no reason to discount Prince’s
statements as the majority does.” In fact, Judge Wallace remarks that he views
Prince’s statements as “relevant to the transformativeness analysis.” Judge
Wallace does not believe that a simple visua


, /freelance-and-business-advice/intellectual-property-advice>

[68](ch11.xhtml#footnote-458-backlink) Patricia Aufderheide, Peter Jaszi,
Bryan Bello, and Tijana Milosevic, Copyright, Permissions, and Fair Use Among
Visual Artists and the Academic and Museum Visual Arts Communities: An Issues
Report (New York: College Art Association, 2014).

[69](ch11.xhtml#footnote-457-backlink) Ibid., p. 5.

[70](ch11.xhtml#footnote-456-backlink) Sixty-six percent of a

 

Display 200 300 400 500 600 700 800 900 1000 ALL characters around the word.