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--></style><title>Re: [SCHOLCOMM] 1st-Party Give-Aways vs. 3rd-Party
Rip-Off</title></head><body>
<div>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.</div>
<div><br></div>
<div>Sandy Thatcher</div>
<div><br></div>
<div><br></div>
<div>At 10:37 AM -0400 8/7/13, Stevan Harnad wrote:</div>
<blockquote type="cite" cite>If supplying eprints to requesters could
be <a
href=
"https://theconversation.com/neuroscientists-need-to-embrace-open-access-publishing-too-16736#comment_198916"><span
></span>delegated to 3rd parties like Repository Managers</a> to
perform automatically, then they would become violations of copyright
contracts. <br>
<br>
What makes the <a
href="https://wiki.duraspace.org/display/DSPACE/RequestCopy"
>eprint-request Button</a> legal is the fact that it is
the <i>author</i> who decides, in each individual instance,
whether or not to comply with an individual eprint request for his own
work; <i>it does not happen automatically</i>. <br>
<br>
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.<br>
<br>
No. What makes the <a
href="https://wiki.duraspace.org/display/DSPACE/RequestCopy"
>eprint-request Button</a> both legal and subversive is that <a
href="http://users.ecs.soton.ac.uk/harnad/Hypermail/Amsci/0671.html"
>it is not 3rd-party piracy</a> (by either a Repository Manager
or an automatic computer programme) but <a
href="http://eprints.soton.ac.uk/262893/1/resolution.html#9.1"
>1st-party provision of individual copies</a>, 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. <br>
<br>
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.<br>
<br>
<i>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!</i><br>
<br>
That practice should never be recommended.<br>
<br>
Rather, make crystal clear the fundamental difference between
1st-party give-away and 3rd-party rip-off.<br>
</blockquote>
<blockquote type="cite" cite><br></blockquote>
<blockquote type="cite" cite>[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: <i>to make all refereed research articles</i> --
each, without exception, an author give-away, written purely for
research impact rather than royalty income -- <i>immediately
accessible to all would-be users</i>, 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. <i>The only parties with whose interests that optimal
outcome is in conflict are the refereed-research
publishers</i> 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 <i>modus operandi</i>. 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.]</blockquote>
<blockquote type="cite" cite><br>
Sale, A., Couture, M., Rodrigues, E., Carr, L. and Harnad, S. (2012) <a
href="http://eprints.ecs.soton.ac.uk/18511/">Open Access Mandates and
the "Fair Dealing" Button</a>. In: <a
href=
"http://www.utppublishing.com/Dynamic-Fair-Dealing-Creating-Canadian-Culture-Online.html"><i><span
></span>Dynamic Fair Dealing: Creating Canadian Culture
Online</i></a> (Rosemary J. Coombe & Darren Wershler,
Eds.)</blockquote>
<div><br></div>
<div><br></div>
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</pre></x-sigsep>
<div>Sanford G. Thatcher<br>
8201 Edgewater Drive<br>
Frisco, TX 75034-5514<br>
e-mail: sgt3@psu.edu<br>
Phone: (214) 705-1939<br>
Website: http://www.psupress.org/news/SandyThatchersWritings.html<br>
Facebook: http://www.facebook.com/sanford.thatcher<br>
<br>
"If a book is worth reading, it is worth buying."-John
Ruskin (1865)<br>
<br>
"The reason why so few good books are written is that so few
people who can write know anything."-Walter Bagehot (1853)<br>
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