From: Lawrence Daressa (email suppressed)
Date: Sat Oct 16 2010 - 14:06:59 PDT
I anticipated my jibe at David's "free market entrepreneurship" would
get his Situationist goat (In 2010? Lettrism davant la lettre?) But I
also hope my post helps some Frameworkers make better informed decisions
about when to offer their work online for free..
Unhappily, I don't enjoy the luxury of time which would allow me to make
such a voluble, not to say vituperative response as David's, so I will
limit myself to providing some examples he requested:
1. First, the Constitution merely permits but does not require
Congress to pass laws granting copyright. These laws, most recently the
DMCA (Digital Millennium Copyright Act), are subject to ongoing
interpretation through case and administrative law review and periodic
findings by the Librarian of Congress.
2. The criteria of "transformative" use has been the basis of
several opinions eg Bill Graham Archives vs Dorley Kindersley Publishing
Inc, and R.R. Donnelley & Sons Company.
3. More importantly, it lies at the heart of the Center for Social
Media's salient expanding Fair Use to cover use of entire works in
education. Attentive readers will note in the two examples cited by
David, CSM uses "transformative" and its near synonym, "repurposed," to
justify incorporating copyrighted content in "original" works which
would not qualify as copies.
4. No one, by the way, is contesting that a transformative use
would constitute a fair use, what is at dispute is what constitutes a
5. One very current example of an academic institution under
intense fiscal pressures making a Fair Use claim to legitimate screening
an entire copyrighted work in instruction is the pending case between
Ambrose Film and UCLA (Board of Regents of the near bankrupt University
of California.) The works in question are performances of the complete
plays of Shakespeare by the Royal Shakespeare Company and BBC..
6. The same claims have been put forward by the OpenSourceWare
Consortium's Code of Best Practices in Fair Use (also prepared by the
CSM) and an amicus brief from the American Association of Research
Librarians in support of UCLA's claims - hardly a disinterested party...
7. If I may be allowed an "anecdote" of my own, I asked the CSM to
give a single example of a legitimate educational use of a copyrighted
film in whole or in part which would not constitute a fair use and they
declined to do so.
8. David is correct that Balzac's "Sarrasine" was not under
copyright at the time Barthe published his exegesis. But Barthe
interspersed Balzac's text with his commentary, he did not copy the
novella as a preface to "S/Z." A more pertinent example would be if
David included the complete "Hapax Legomena" in a Blackboard syllabus
without having obtained digital rights on the ground that he or his
students would "analyze" it and Frampton never intended it to be
This probably exhausts what limited constructive comments I can make on
the Ubu controversy. Thanks.
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