Are Some Fair Use Factors “More Equal” Than Others?

more equal

“Cute Little Tiny Baby Pig” by Michael Kappel CC-BY-NC

Last week, a district court judge upheld a jury’s decision that Google’s use of Java declaring code in the Android operating system was protected by fair use. If terms like “declaring code” and “application programming interface” aren’t common parlance for you, don’t worry, you’re in very good company (and may be eligible for a seat on the Federal Circuit). No matter how familiar you are with the technical details of the case, however, it offers a fascinating example of how fair use has evolved in recent years. It also suggests we take a closer look at one generally-overlooked aspect of the law: the second fair use factor.

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The Copyright Office off the rails

When the Copyright Office issued its Notice of Inquiry (NOI) about a “Draft Revision of the Libraries and Archives Exception in U.S. Copyright Law,” I happened to be at a large meeting of librarians. The conversation turned quickly to this new NOI, in regard to which librarians are, of course, a major stakeholder, and I learned two things.

First, the group confirmed my previous intuition that section 108 — the exception in question — still works pretty well for the limited activities it enables – copying for library preservation and for users doing private research and study (which includes interlibrary loans). Second, there is considerable mistrust of the Copyright Office in the library community.

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Waking from the Dream

A blog called “In the Open,” dedicated to issues for scholarship and libraries, is a logical place to engage in the ongoing and vital discussions about diversity and inclusion in our libraries and on our campuses.  Following the lead of April Hathcock’s post from last month, I offer this reflection to continue the conversation:

Many years ago, soon after we were married, my wife and I spent a year as house parents for a group of academically-talented teenage boys from disadvantaged backgrounds who, were they not part of the program that put them in better schools, would have had little chance of getting into college.  The house was, to say the least, ethnically and racially diverse.  One afternoon, one of our seniors came home upset and with his knuckles bleeding.  Corry, as I will call him, had been in a fight because another boy in the school had called him the N-word.  The details of the fight, as well as his distress at the result, convinced me that Corry had behaved as well as could be expected in the circumstances, but there were complex consequences.  For me, the most profound part of the whole episode was when I sat listening to a conversation between Corry and his father.  His father asked Corry if he understood why being called that word had upset him so, since it was common enough in music and on the basketball court.  When Corry admitted that he did not, his father explained the context and history of that epithet in his own life, which I think opened Corry’s eyes.  I know that it opened mine.

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On Trying Not to Worry About Piracy

A few weeks ago, it felt like the threats to the work we do at the University of North Carolina Press were coming from all directions.

At a regional SSP panel discussion, a key local collection development librarian in the audience told the university press panelists that declining purchases of our monographs was not primarily due to a lack of financial resources in libraries. Instead, he argued, their analytics indicated our books were not being used enough to justify their acquisition.

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