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Fair Use of Textbooks – a Paradigm Case

Last Updated on December 7, 2012, 4:02 pm ET

In discussing fair use in the educational realm, we often mention that copying and distributing excerpts from textbooks, workbooks, and the like will present a challenge for the would-be fair user, as they are typically not doing anything transformative with these materials. Making educational uses of content that was written, published, and marketed for educational use looks a lot more like mere substitution and unfair competition, the kind of thing that fair use is not meant to protect. That’s why the first limitation to Principle One of the #librarianscode suggests additional scrutiny in cases where such works are used.

But, like every general statement or rule of thumb, the idea that textbooks are not easily susceptible to fair use arguments is subject to important exceptions. There’s no mention of copyright in this article about a blog that documents absurd, creepy, weird, and otherwise lame stuff the author finds in textbooks, nor on the blog it profiles, and yet this blog could not exist without fair use. And its fair use argument is quite compelling.

The blog obviously presents a case of potential infringement – images and text are taken verbatim from copyrighted works. But the purpose of the blog is highly transformative – it documents and comments on the ridiculously bad writing and just weird stuff that appears in textbooks. No one would read the blog as a substitute for reading the textbooks; indeed, as with many transformative works, the blog is a critique of the books that will likely warn readers away from the underlying works. Stavem takes only the excerpts that are appropriate to his critical purpose – images of the bizarre and offensive portions, not full-text pdfs or epub files.

Imagine if Mr. Stavem had to ask permission of the textbook authors or publishers to write his blog. Do you think he would have much luck? This is precisely the situation where fair use is meant to step in and promote the creation of new and valuable culture by preventing private censorship by the owners of existing copyrights. Stavem’s fair use argument is so compelling and our intuition of its legitimacy is so strong that even the Chronicle, which covers copyright and fair use regularly, didn’t even think to ask whether there are copyright concerns involved.

Let that be a lesson for all of us: there are no absolutes or bright lines in fair use, and even textbooks (especially horrifically bad ones) are subject to fair use in the right situation.