Good post.  P

On Wed, 7 Aug 2013, Sandy Thatcher wrote:

> Technically, it probably is better to regard the eprint request Button as a
> function facilitating personal use rather than fair use. (Stevan once used to
> call this the "fair use button.")  The Copyright Act of 1976 does not
> directly address personal use, as it does fair use in Sec. 107, except in an
> addition that was later made to deal with home audiotaping.  The concept has
> arisen in some court cases, most notably the Sony case involving
> "time-shifting" of videotaping of TV shows for later viewing. But there
> remains a lot of debate about what personal use covers. It will likely be a
> subject of much discussion in the forthcoming hearings in Congress over
> comprehensive reform of copyright law.
>
> Sandy Thatcher
>
>
> At 10:37 AM -0400 8/7/13, Stevan Harnad wrote:
>> If supplying eprints to requesters could be
>> <https://theconversation.com/neuroscientists-need-to-embrace-open-access-publishing-too-16736#comment_198916>delegated
>> to 3rd parties like Repository Managers to perform automatically, then they
>> would become violations of copyright contracts.
>> What makes the
>> <https://wiki.duraspace.org/display/DSPACE/RequestCopy>eprint-request
>> Button legal is the fact that it is the author who decides, in each
>> individual instance, whether or not to comply with an individual eprint
>> request for his own work; it does not happen automatically.
>> Think about it: If it were just the fact of requesters having to do two
>> keystrokes for access instead of just one (OA), then the compliance
>> keystroke might as well have been done by software rather than the
>> Repository Manager! And that would certainly not be compliance with a
>> publisher OA embargo. "Almost OA" would just become 2-stroke OA.
>>
>> No. What makes the
>> <https://wiki.duraspace.org/display/DSPACE/RequestCopy>eprint-request
>> Button both legal and subversive is that
>> <http://users.ecs.soton.ac.uk/harnad/Hypermail/Amsci/0671.html>it is not
>> 3rd-party piracy (by either a Repository Manager or an automatic computer
>> programme) but
>> <http://eprints.soton.ac.uk/262893/1/resolution.html#9.1>1st-party
>> provision of individual copies, to individual requesters, for research
>> purposes, by the author, in each individual instance: the latter alone
>> continues the long accepted tradition of reprint-provision by scholars and
>> scientists to their own work.
>> If reprint-request cards had been mailed instead to 3rd-parties who simply
>> photocopied anyone's articles and mailed them to requesters (with or
>> without a fee) the practice would have been attacked in the courts by
>> publishers as piracy long ago.
>>
>> The best way to undermine the Button as a remedy against publisher OA
>> mandates, and to empower the publishing lobby to block it, would be to
>> conflate it with 2-stroke 3rd-party OA!
>>
>> That practice should never be recommended.
>>
>> Rather, make crystal clear the fundamental difference between 1st-party
>> give-away and 3rd-party rip-off.
>>
>>
>> [Parenthetically: Of course it is true that all these legal and technical
>> distinctions are trivial nonsense! It is an ineluctable fact that the
>> online PostGutenberg medium has made technically and economically possible
>> and easily feasible what was technically and economically impossible in the
>> Gutenberg medium: to make all refereed research articles -- each, without
>> exception, an author give-away, written purely for research impact rather
>> than royalty income -- immediately accessible to all would-be users, not
>> just to subscribers: OA. That outcome is both optimal and inevitable for
>> research; researchers; their institutions; their funders; the R&D industry;
>> students; teachers; journalists; the developing world; access-denied
>> scholars and scientists; the general public; research uptake, productivity,
>> impact and progress; and the tax-payers who fund the research. The only
>> parties with whose interests that optimal outcome is in conflict are the
>> refereed-research publishers who had been providing an essential service to
>> research in the Gutenberg era. It is that publishing "tail" that is now
>> trying to wag the research "dog," to deter and delay what is optimal and
>> inevitable for research for as long as possible, by invoking Gutenberg-era
>> pseudo-legal pseudo-technicalities to try to embargo OA, by holding it
>> hostage to their accustomed revenue streams and modus operandi. OA
>> mandates, the immediate-deposit clause, and the eprint-request Button are
>> the research community's means of mooting these delay tactics and hastening
>> the natural evolution to the optimal and inevitable outcome in the
>> PostGutenberg era.]
>>
>> Sale, A., Couture, M., Rodrigues, E., Carr, L. and Harnad, S. (2012)
>> <http://eprints.ecs.soton.ac.uk/18511/>Open Access Mandates and the "Fair
>> Dealing" Button. In:
>> <http://www.utppublishing.com/Dynamic-Fair-Dealing-Creating-Canadian-Culture-Online.html>Dynamic
>> Fair Dealing: Creating Canadian Culture Online (Rosemary J. Coombe & Darren
>> Wershler, Eds.)
>
>
> --
> Sanford G. Thatcher
> 8201 Edgewater Drive
> Frisco, TX  75034-5514
> e-mail: sgt3@psu.edu
> Phone: (214) 705-1939
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>
> "If a book is worth reading, it is worth buying."-John Ruskin (1865)
>
> "The reason why so few good books are written is that so few people who can
> write know anything."-Walter Bagehot (1853)
>

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