AFRO-NETS> What is the meaning of "fair use"?

[Christian Labadie <CLabadie@t-online.de>]

What is the meaning of "fair use"?
----------------------------------

> Christian--what is the meaning of "fair use" that you are putting
> on the bottom of your articles? thanks [...]

Hello,

I am choosing to CC Kabissa's and AFRO-NETS' moderators and prev-
ges.OERT (online education research and training) because it seems an 
important question that could benefit other readers in Southern Af-
rica.

It is interesting that you wrote "your articles". It shows how impor-
tant it is to clarify that it isn't "my articles" but someone's else.

There is an excellent paper on 'copyright fair use' from the 50's:

        Photocopying by Libraries and Copyright: A Precis
        by M.O. Price (1959)
        Library Trends 8(3):432-447.

If you want a copy of it, I had scanned it for the participants of 
the eCertificate on "citation based bibliographies" last year (the 
file is 1,47MB large).

There is also an URL often used by E-DRUG moderators: "Fair use doc-
trine of international copyright treaty"
http://www4.law.cornell.edu/uscode/17/107.html

I think 'copyright fair use' can be described as an exception that 
dates back to before photocopying was introduced.

It comes from the old conventional way students used to learn at uni-
versities, where it was acknowledged that copying was an intrinsic 
part of learning and was necessary for scholar studies and research. 
There were no fixed terms but a kind of "gentlemen agreement" left to 
judgement.

In principle the (c) copyright sign may be assumed by default when 
someone writes/draws/sings/creates perfumes/etc. as long as it is 
her/his own work.

The mention of a 'fair use' appears important to me, because it warns 
someone that the material appearing in one's message is strictly 
speaking not "one's own writing". Graeme Hart had developed an inter-
esting copyright footer (Online-Ed, http://www.whirligig.com.au/), 
that explained the distinction between his work as editor and the 
works that appear within his messages.

For instance, someone may assume to some degree, that I do not object 
that my messages are sometimes forwarded without my explicit consent 
[1], but it is important that I warn them whenever copying my message 
may cause them a legal prejudice.

For example, if I copy The Guardian's or SABC News articles, my own 
status plays an important role. A judge would always check (a) if I 
have gained from copying, (b) if it has caused a loss of revenues 
(this is the reasoning that forced http://www.napster.com to close 
its free file sharing system and to replace it with a "for fee" ser-
vice).

I personally don't gain from my messages, but this may not be true 
for all readers who choose to reproduce my messages, at least I may 
not assume that, since I have no contractual arrangements with them.

This issue is lukewarm, but it did suffice to close down another 
server called "anon.penet.fi" in Finland, that was used among others 
by scholars to anonymously interview people in jail (an important 
mean of communication for inmates with the outside world: the US has 
the largest jail population in the world with over two Millions who 
enjoy little human rights: sometimes even with leg chains in tents in 
the middle of deserts under cold nights and hot days ... not to speak 
of revolting death sentences -- most of them may not cast their votes 
as US citizens, one reason why Al Gore did not fully benefit from the 
support of the African American community!).

The anon.penet.fi system was heavily abused to send porno materials, 
although the reason that led to its closing was the disclosure of 
sensitive documents of a religious group: the Church of Scientology.

The server owner in Finland (Johan Helsingius who operated the pseu-
donymous remailer anon.penet.fi) was forced to disclose the true "e-
mail address" of an anonymous message reproducing a document of the 
Church of Scientology.

The Church of Scientology invoked the copyright international treaty. 
Johan Helsingius argued that revealing the e-mail identity of author 
would break the trust of users and the terms of privacy of 
anon.penet.fi. There was a USENET outrage, but justice in Finland had 
to comply with International arrangements because the materials was 
copyright of that "religious" group.

Retrospectively I feel that "fair use" was quite appropriate in that 
case and should have sufficed to dismiss the claim of the Church of 
Scientology, since the intention of the anonymous sender was to "edu-
cate" and to "research" the dangers posed by the "religious" group. 
Thus in terms of "copyright" (I insist *in terms of copyright*) there 
were no prejudices made to the religious group since "fair use" ap-
plied (education, scholar and research purposes), even though on 
other legal terms they could have claimed damages, but not on an in-
ter-continental basis (US/Finland).

But there was much more at stake in that "anon.penet.fi". Perhaps 
something that Finland did identify with (Finland is a European coun-
try with a rare record of "Internet avant-garde, in comparison with 
lag-behinders such as France). Namely turning the Internet from an 
anarchic collaborative inter-continental success (do remember that 
the commercial ventures such as AOL and CompuServe were not as suc-
cessful as the USENET) into a commercial profitable new "gold-rush".

The outcome of the anon.penet.fi judgement did intimidate a lot of 
folks on the USENET (a dial-up network that predates the Internet in-
frastructure

        <<Yes, USENET predates the Internet; in those days, 
        news was passed via regular dial-up connections. 
        There are still many sites that participate in USENET 
        in this fashion>>

see page 153, "The Whole Internet" by Ed Krol, 2nd Edition, O'Reilly, 
April 1994, ISBN 1-56592-063-5).

One other important step that involved copying, was the commercial 
server www.dejanews.com that chose to reproduce all messages from the 
USENET newsgroups onto the web (without the explicit authors' consent 
by the way! thus breaching International copyright arrangements -- 
what closed napster.com and anon.penet.fi, opened dejanews.com! I 
wonder how law schools can teach anything rational out of this, be-
side profit-thinking).

Before dejanews, newsgroups' messages had an explicit "date of expi-
ration". With dejanews.com (now www.deja.com) newsgroups became web-
publications ignoring the expiration date, with a kind of imposed 
world-wide copyright transfer from authors to the US based web-
server. The server of dejanews.com generated revenues from adds with-
out passing them onto authors. Then came onelist.com, egroups.com, 
etc. that had terms of use that gave more and more rights to the 
servers (that went up to including the right to change the terms of 
use without notification of users! By now this must no longer be a 
law school's joke but a recommendation: click "yes" to loose all your 
rights and soul! a Faust virtual remake).

Topica.com introduced an intermediate trick by sharing revenues with 
a "class" of users: the list-owners. You may be surprised by reading 
the word "class"...

This concept of "class" so typical to object-thinking present in OOM 
(object oriented modelling, an essential property of modern program-
ming languages), did influence the way persons are "materialised" as 
object instances on the Internet (you are not a person, you are an 
instance of the class "user": this isn't a joke, it is exactly what 
appears in an otherwise excellent German book for children, in which 
they explain OOM as follows: 

        <<Was versteht man hier unter einem Objekt?
        Das sind doch eigentlich diese Dinger, die staendig
        irgendwo herumstehen oder sich um uns herum
        bewegen. Also z.B. Haeuser, Baeume, Autos, Leute.
        Auch Du bist ein Objekt. Und zwar vom Typ Mensch.>>

see page 29, "C++ fuer Kids" by Hans-Georg Schumann, Ed. mitp, Bonn, 
1999, ISBN 3-8266-0495-4). OOM may explain a lot about the psychology 
of Internet programmers and the way they view humans, hierarchy, 
power, control and communication (so called "methods").

Why does Topica.com choose to share revenues with "list owners" and 
not with the message authors? I find it hard to justify this approach 
since both so-called "classes" of user are de facto registered with 
Topica.com.

The rational behind it is clearly a game of "power and control" that 
encourages owners to devote more work into their list and to impose 
more invasive advertisement forms such as top-message or intra-
message adds (other servers such as egroups.com failed to move their 
adds from the bottom to the top in September 2000).

But the arrangement between Topica.com and the list-owners is border-
line with a true "employment contract" of the list-owners by 
Topica.com. If one can close "anon.penet.fi" on a borderline invoca-
tion of copyright, one should be able to claim retirement and health 
benefits from Topica.com on a borderline invocation of employment. 
That would be common analogical sense.

Clearly, reproducing messages of others is an issue that mixes to-
gether revenues, education, scholarship and research. So "fair use" 
will play an increasing role in the way we collaboratively communi-
cate by Internet.

The fact that the Internet relies on servers (and on the consequences 
of OOM) makes the whole issue quite difficult, especially with the 
web: everything becomes a world-wide publication.

It could be predicted that there will be a come-back of dial-up, or 
home-based communication. For that purpose the re-introduction of the 
old % in email SMTP-syntax would be necessary, to allow emails to 
travel through several dial-up connections: e.g. 
<mailto:user%mailbox%relay2@relay1> would mean that an e-mail for 
user@mailbox has to be sent through the two relays before reaching 
the mailbox; this helps cutting costs of sending e-mails when dial-
ing-up over very long distances, by using a combination of several 
small dial-up distances (provided that intermediate relays accepts to 
do the favour). There are other advantages such as creating home-
based education environments using a single email address to avoid 
the use of Internet servers.

Thus by placing a "fair use", I am basically trying to say that I 
feel that the article I am reproducing is an important information 
which serves "education", "scholar" and "research" purposes and that 
it justify to wave copyright fees.

However in Southern Africa where I am assuming that the server of 
AFRO-NETS is virtually placed (it is in fact located in the US I 
think, as Kabissa's is), the common wisdom is towards ignoring "fair 
use" and charging students.

The UNISA, one of the largest distance universities in the world, 
chose to charge students a fee for reprints. Students receive bound 
collections of reprints, with a table of contents, etc., and have to 
pay for it.

As soon as a fee is collected then it is difficult to claim a "fair 
use". So distance universities tend to negotiate copyright fees for 
students who "gain" from price cuts.

But in comparison to face-to-face students, distance students are 
charged more for reading and get less diversity of readings (they can 
not browse quickly books at the library to preview other related top-
ics -- and the student's money fatigue overrides reading fatigue, 
whereas one would think that it should be other way around in educa-
tion, shouldn't it?).

In my case I am clearly not charging for reproducing. But if someone 
else would charge or collect money for displaying my messages, then 
there is a legal difficulty.

For example AFRO-NETS was mirrored on egroups.com, which is now ya-
hoo.com. But Yahoo! places one to three advertisement banners on 
their pages, thus they collect something each time they show a mes-
sage. Using a centralised OOM system of advertisements, commercial 
servers can synchronise information about object-oriented users and 
secure sensitive information about their interests: you know that 
coockie saying "CheckForPermission". When you say [OK] to the "Check-
ForPermission" coockie, you are basically saying: "yes I give to a 
centralised world-advertisement agency all my rights and my soul, 
please make a profile about me and forbid me the right to view it!". 
This is basically what you say by accepting web-coockies.

In case I reproduce commercial materials, the preview of my message 
on a commercial server that adds advertisements is becoming a "hot 
issue": for example, SABC News or the Guardian are loosing legitimate 
revenues that Yahoo! collects instead. That's not fair, is it?

In that respect, I feel that AFRO-NETS should not be copied onto com-
mercial servers, so that contributors could use their judgement to 
reproduce full text or "deep-links" accordingly.

I wonder if a "special discussion" on copyrights, patents and trade-
marks (and by extension on Richard Stallman's GNU copyleft - a legal 
document started at MIT in 1975 as part of the emacs-editor and that 
enabled Linux and many other projects, http://www.gnu.org) would be 
appropriate for readers of Kabissa and AFRO-NETS, as they may not 
have had the chance to reflect on these issues before.

Clearly I have some strong emotional views on this because I am "sick 
and tired" of unemployment and of witnessing its impact on health and 
wealth and because I genuinely don't believe in "globalisation" legal 
arrangements to resolve those market-shortcomings...

I belong to that generation who still misses the heart and the advo-
cacy of Princess Diana, will never forget her remarkable contribution 
to AIDS and continues to regret all the special attention that the 
world's poor lost with her.

But nevertheless other persons in Southern Africa may see in these 
global legal concepts an opportunity to generate revenues and wealth. 
I may disagree with the wisdom (philosophy) of this development ap-
proach, but they have a right to unbiased information, thus I would 
suggest to invite persons who have an experience with explaining 
these issues on discussion lists: there were for example a few per-
sons on the DEOS-L list who would perhaps accept to present "fair 
use" and answer questions.

Hope this helps.
Christian Labadie
mailto:CLabadie@t-online.de
http://citation.thread.free.fr

[1] Btw, I feel that "copying" and "databasing" are two entire dif-
ferent things: the fact of forwarding one's own message on one hand, 
and of indexing/storing on another hand, are clearly quite different. 
Those index act as a communication quencher by intimidating people 
from voicing their ideas and emotions. In my opinion, the control of 
indexing should remain in the hand of the authors at all time, not in 
those of a third party (server). That is why I often write that web-
pages containing "names" and/or "e-mail addresses" should be pro-
tected from indexing using a "robot" HTML-meta-tag (something that 
tells AltaVista, Infoseek, etc. to ignore requests to index the 
page):

        <meta name="robots" content="noindex">

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