The Fact of Evolution? By David M. Kern http://sites.google.com/site/factofevolution/
About Copyright March 31, 2011 Copyright © 2011 by David M. Kern – All Rights Reserved Important Copyright Notification In order to provide a thorough analysis of the so-called Fact of Evolution, this book includes many short quotations from a large number of experts in a wide variety of technical fields. These quotations are copyright protected by the sources documented in the endnotes (see the "Notes and References” section located at the end of each chapter). I believe that these quotations fall under the Fair Use limitation of US Copyright Law (http://www.copyright.gov/fls/fl102.html). However, Fair Use has a very vague definition and copyright violations are subject to legal penalties. An About Copyright document with additional information on this topic is posted on the Fact of Evolution website. Where I am quoting a larger amount of copyrighted material, I have obtained permission to reproduce this material on my website. My use of this copyrighted material does not imply any endorsement of the views presented in this document. Any permission I have been granted to reproduce this copyrighted material applies only to my specific use. I gratefully acknowledge the various sources who have granted me permission to reproduce their copyrighted material. Each chapter of this book has an Acknowledgment section that lists any specific permission statements that I have received. The Acknowledgment section is located directly before the "Notes and References" section. My major goal in writing this book is to seek the truth about a very complex technical topic. My motivation for quoting expert sources is to pass their words onto my readers with as little distortion as possible. However, copyright laws limit the amount of context that can be included in such quotes. This can also distort the meaning of a passage. I do not wish to distort the opinion of anybody that I am quoting. If you believe that I have distorted the meaning of one of your quotes, please contact me so that we can discuss this issue and negotiate a solution. A form for contacting me is located on this webpage: http://sites.google.com/site/factofevolution/contact. If you believe that I am reproducing your copyrighted material outside the bounds of Fair Use guidelines, please contact me to discuss this issue. I will attempt to resolve any copyright violations that I may have committed in a pleasant and prompt manner. Terms and Conditions This document is covered by a US copyright and it should not be sold in any format. An About Copyright document describes the “Usage Terms” for all documents that are posted on the Fact of Evolution website (http://sites.google.com/site/factofevolution/).
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List of Topics Copyright Basics The Vague Definition of Fair Use The Danger of Invoking Fair Use My Fair Use Guidelines Acknowledgement Section with Permission Statements How to Report a Copyright Violation Drawing Lessons from a Copyright Joke Usage Terms for This Website (Permissions) Copyright Basics Copyright laws allow writers to protect their work from copying without permission. The website for the United States Copyright Office provides basic information about US Copyright Law.1 Because I am a United States Citizen with a residence in the US, all documents posted on this website are covered by a US Copyright.2 Various international treaties and conventions supply these documents with worldwide copyright protection.3 Return to List of Topics The Vague Definition of Fair Use The Fair Use limitation of US Copyright law limits the right given to a copyright holder to prevent reproduction without permission. According to the United States Copyright Office, four factors are used to determine whether a particular use of copyrighted material constitutes Fair Use4: 1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes. 2. The nature of the copyrighted work. 3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. 4. The effect of the use upon the potential market for, or value of, the copyrighted work. The definition for Fair Use is very vague. This is made clear in the words of the US government website that describes Fair Use: The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.5
The Fact of Evolution?
Copyright © 2011 by David M. Kern
March 31, 2011
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The lack of a clear definition for Fair Use by the US government reminds me (a nonlawyer) of a mythical country with the following traffic rules: • Upon the advice of our legal advisors, we have decided not to post any precise speed limits on our highways. Consequently, we are free to issue speeding citations at whatever speed you choose to drive. If the amount of copyrighted material that can be safely quoted under Fair Use is left to many publishers, the answer would be easy – none. For example, I have never seen a title page for a single book that acknowledges the “Fair Use” limitation of US Copyright law. Instead, many publications contain wording of the form: “No parts of this publication may be reproduced in any form without written permission.” Although I am not a lawyer, I believe such legal warnings are factually incorrect, because they imply that no Fair Use limitation exists for this set of copyrighted material. Some publications do add wording of the form: “except in the case of short quotations and critical reviews.” However, this leaves open the question of what is meant by “short quotations.” Also, Fair Use does not limit commentary to a “critical review” of a specific work. Some publishers do provide guidelines for the number of quoted words that they consider to fall under Fair Use. Other publishers provide easy-to-use ways to request permission for quoting material. I gratefully appreciate all publishers who provide their readers with the courtesy of these services. Return to List of Topics The Danger of Invoking Fair Use Copyright laws have an important purpose. They protect an author’s hard work from being pirated away with no financial compensation being offered in return. One of my favorite examples of such pirating involved a biography of George Washington. The Wikipedia article on Fair Use describes an author who copied 353 pages from an existing 12-volume biography of Washington to produce his own 2-volume version.6 Quoting such a large amount of material in a competitive product clearly violates the intention of copyright protection. This clear abuse of copyright triggered an 1841 court case that led to the creation of the four Fair Use factors. While it is clear that copyright law seeks to prevent the outright theft of copyright material, it is also clear that copyright law is not intended to prevent “fair and reasonable criticism” of a copyrighted work.7 The lack of a clear definition for Fair Use means that any invocation of this right constitutes a legal risk. For example, the words “To be or not to be,” are likely to be under the copyright projection of some collection of Shakespeare’s works.8 Does my citation of this famous quotation represent a copyright violation or is this Fair Use? Perhaps adding, “That is the question,” to my Shakespeare quote pushes me over the undefined limit of Fair Use. But nobody can say for sure. The point is that with a vague
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copyright law, Fair Use has no precise definition. Because no safe-word-count or safepercentage-of-work exists in copyright law, Fair Use always carries a legal risk. The Wikipedia article on Fair Use describes a mythical 300-word Fair Use limit that may or may not have existed among New York publishers.9 If such a limit ever existed, it disappeared with a legal case over President Ford’s memoirs. In this case, a quote of approximate ly300 words in length was ruled to be a copyright violation.10 It seems unbelievable that a court would rule that a 300-word quote from a 500 page book (~200,000 words) was not Fair Use. But the vast public interest in the quoted passage gave it a high commercial value. A Lloyd Rich article on the legal interpretation of Fair Use summarizes the background for this case.11 The case involved a Time magazine contract to publish a 22,500-word excerpt from President Ford’s memoirs one week before its publication by Harper & Row. Another magazine (Nation) scooped Time and printed a 300-word quote from the book without permission. The quote dealt with Ford’s pardon of President Nixon. Because Time magazine was scooped on a news story that everybody was anxious to hear, it cancelled the contract with Harper & Row, who then sued Nation for financial damages. Because this case involved scooping an unpublished work of clear financial value, it is not a typical Fair Use case. But it has added legal risk to any Fair Use claim. A University of California Press guide gives authors the following advice: “Scholars should exercise the right of fair use when it applies; otherwise it could be eroded.”12 To avoid eroding the right of Fair Use, it would be highly beneficial if a clearer definition of Fair Use were included in copyright law. But this clear definition doesn’t exist. A University of Texas website describes Fair Use as a “no-man's land” that you “enter at your own risk.”13 A University of Chicago Publication on Author’s Permission Guidelines states, “No one can give an absolute prediction of how a court may rule in a particular [Fair Use] case.”14 As it exists now, Fair Use law neither guarantees protection to copyright holders nor allows any amount of material to be safely quoted without permission. I believe that having such a vague definition for the line between Fair Use and copyright violations benefits nobody. I believe that legally defining a minimum safe-limit for word count (and/or percentage of work) that would fall under Fair Use would be a good thing for everybody. Some exceptions for protecting unpublished works and the financial value of breaking-news stories would clearly be needed. But these would be inapplicable in most cases. Defining a minimum safe-limit for Fair Use would automatically move cases involving much larger blocks of material into a risky legal area. And it would allow quoting small amounts of material without taking on a potentially huge legal risk. I believe this would benefit both copyright owners and reasonable users of Fair Use. This quote from a University of Texas website provides a clear reason why such common-sense boundaries would make sense: “many legal scholars, politicians, copyright owners and users and their lawyers agree that fair use is so hard to understand that it fails to provide effective guidance for [fair use].”15 The Fact of Evolution?
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Unless the politicians and courts that control the implementation of Fair use law decide to change its vague definition, I must accept it, whether I like it or not. Thus, like all other authors who seek to comment on copyrighted material, my book faces the legal danger of invoking Fair Use. Return to List of Topics My Fair Use Guidelines In order to provide a thorough analysis of the so-called Fact of Evolution, this book includes many short quotations from a large number of experts in a wide variety of technical fields. Various websites discuss whether such quoted material will meet the standards of the four Fair Use factors.16 Because this book is a non-profit commentary on a factual subject, many of the guidelines for determining Fair Use lean in its favor. However, a copyright holder is always entitled to file a court case to dispute any claim of Fair Use.17 Hence, as the previous section described, all claims of Fair Use involve taking on legal risk. Because I fear legal risk, I seek to avoid it.18 However, I have found that many publishers neither provide guidelines for Fair Use of their copyrighted material nor respond to questions about Fair Use. In such cases, I have had to set my own standard for the amount of material that I consider to be Fair Use. One of many sources that I have consulted is a University of Chicago Press document, which lists quantitative guidelines for the Fair Use of its material (although no quantitative guidelines for Fair Use are legally safe): No more than 1000 words and no more than 5% of the copyrighted work, with no single quote being more than 300 words in length, and the total length of the quoted material being not more than 5% of the new work.19
If a normal sized-book has 200-250 pages, this equates to approximately 100,000 total words.20 I estimate that my book is somewhere near this length. Consequently, any quotation that meets the quantitative Fair Use standards of the University of Chicago Press (no more than 1000 words) would be a small percentage of my work. When quoting from a normal sized book, I have used a guideline of about 300 total words as my self-imposed Fair Use standard. Various publishers have informed me that this amount of quoted material falls within (or close to) their standard for Fair Use. However, any word limit placed on Fair Use is arbitrary, and subject to dispute. If I approach 300 total words from any one source, it is typically done with multiple quotes that average about 30-50 words each (a few sentences). Normally, the quotes I have selected come from a variety of pages within the copyrighted source and they are often scattered throughout my book. Some publishers may dispute that 300 words is an acceptable limit for the Fair Use of their copyrighted material. However, because of the lack of a clear definition, nobody can say for sure what is or is not Fair Use. The copyright law is so vaguely defined, that court cases deciding conflicting opinions about Fair Use are notoriously unpredictable.
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The amount of material that can be quoted under Fair Use is also dependent on the percentage of the work that is quoted, rather than on a strict word count. So there are different standards for Fair Use when quoting from a typical sized book (say 250 pages) and a typical size article (a small handful of pages). My Fair Use Guideline for quoting from articles (newspapers, magazines, and websites) is to limit myself to approximately 100 words. This normally amounts to approximately 4-5 sentences. However, as in all cases of Fair Use, any limit placed on the amount of words and sentences is arbitrary, and subject to dispute. For a relatively short passages, it can be virtually impossible to cite the information content without using either a direct quotation or a close paraphrase (both of which can constitute a copyright violation).21 For example, there are a limited number of ways to list the first three Presidents of the United States. Here are two: • The first three Presidents of the United States were George Washington, John Adams, and Thomas Jefferson. • George Washington was the first President of the United States. He was followed by John Adams and Thomas Jefferson. US Copyright law (Chapter 1, Section 102b) indicates that copyright protection does not cover the information content that is contained in quoted material: (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless 22 of the form in which it is described, explained, illustrated, or embodied in such work.
My preference for citing the information content of short passages is to use a direct quotation linked to a reliable source through a footnote. Because this minimizes distortion, I believe this option is preferable to rewriting passages in my own words. I believe this practice falls under the domain of Fair Use. But I have no guarantee of this. If the quotes I have selected fall outside of your Fair Use guidelines, I am certainly willing to negotiate a reasonable Fair Use limit for quoting from your copyrighted material. The most likely resolution of such a Fair Use dispute would be that I would modify quotes to meet a mutually agreed upon word limit for my application. Return to List of Topics Acknowledgement Section with Permission Statements Sometimes I quote an amount of material that falls outside of the Fair Use boundaries that I have set for my book. In these cases, I have sought permission from publishers to reproduce their copyrighted material. The permission statements for these cases are included in an Acknowledgement section at the end of each chapter. Return to List of Topics How to Report a Copyright Violation In all cases, I plan to be flexible if anybody challenges my right to Fair Use. If this applies to your copyrighted material, please feel free to contact me at so that we can
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discuss this matter and negotiate a solution. A form for contacting me is located on this webpage: http://sites.google.com/site/factofevolution/contact. Return to List of Topics Drawing Lessons from a Copyright Joke Douglas Adams The More Than Complete Hitchhiker’s Guide contains a chapter poking fun at “incomprehensibly tortuous Galactic Copyright laws.”23 In Adams book, the galaxies most powerful publishing company copies a passage from the back of a cereal box, making minor changes to avoid a copyright lawsuit. Then the modified version is sent back in time and the cereal company is convicted of a copyright violation. Whether in humorous fiction or in real life, powerful publishing companies with talented legal teams seek to maximize the finances of their employer’s intellectual property. In my opinion, the threat of legal force by such powerhouses allows them to claim rights that go beyond both the letter and intent of copyright law. The vague nature of copyright law, and the lack of a clear definition for Fair Use, encourages this behavior. Technically speaking, copyright law grants legal ownership to a specific arrangement of words. However, the underlying information described by these words is still in the public domain. It would be impossible to write a lawful description of famous events if copyright law granted ownership to underlying information. For example, consider famous events like the assignation of President Kennedy or the Apollo Moon Landing. Copyright laws have an important purpose. They prevent the outright theft of the work done by authors, and they protect the financial value of their intellectual property. But without a clear Fair Use standard that allows small amounts of copyrighted material to be quoted, the “legally-safest-alternative” is to modify existing works, and provide little or no credit to the original sources. Instead of using this quasi-plagiaristic method, I have chosen to give authors credit for their prior work by directly quoting their material with proper attribution. In my opinion, this allows me to accurately comment on the work of other authors, and to give them proper credit for the work that they have done. I have chosen this methodology for my book, even though I face the legal risk of invoking the vague definition of Fair Use. Return to List of Topics Usage Terms for this Website (Permissions) The US Copyright Office has supplied this definition for the meaning of publication: In the current copyright law, “publication” is defined as “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication” (17 USC sec. 101). 24
According to this definition, a public display of a work (as on this website) is not the same as publishing a work. Thus, while I have posted this book on the Internet for public
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viewing, I am still classifying it as an unpublished work. The following reasons have led me to classify the material posted on this website as unpublished: • I am not selling or transferring the ownership of this material to any party. • I am not renting, leasing or lending the ownership of this material to any party. • I am not offering this material to any party for further distribution, public performance or public display (as on a different website). Even thought I am classifying the material on this website as an unpublished work, I have the same right to control reproduction of the material posted on this website as any other copyright holder or publishing house.25 I reserve the right to limit reproduction of this material at some later day to the vague definition of the Fair Use limitation of US Copyright law. Until that time, I ask that you comply with the following guidelines for reproduction of this material: 1. No part of the material posted on this website may be used for commercial purposes, unless the excerpt falls within the Fair Use limitation of US Copyright law. 2. I can grant no permission to print any document unless the corresponding copyright information is included (i.e., page header/footer, endnotes, and acknowledgement section). For this reason, only complete documents should be printed (i.e., no less than a chapter). 3. You have my permission to download a single copy of each document posted on this website and/or to obtain a single print copy of each document for personal and non-commercial use. 4. For small groups, a single person has my permission to print multiple copies of each document provided they distribute one copy to each group member at no cost (a variant of Item 2). 5. For small groups, the members of a small group have my permission to share the cost of using an on-line printing service to obtain a single printed copy for each group member (a variant of Item 2).26 6. For non-commercial use (such as posting on a website or including an excerpt in a private email) you may quote up to 500 of my own copyrighted words provided that you include my copyright information and an appropriate reference/link to my website.27 7. If you have a special need that requires quoting more than 500 of my own copyrighted words, please contact me using contact form that is located on this webpage: http://sites.google.com/site/factofevolution/contact. 8. Please be aware that I cannot grant permission to quote the copyrighted material of others that is embedded in my work. Perhaps some of this material may be legally quoted under Fair Use guidelines. But as described above, nobody can say for sure.
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9. If you choose to quote the copyrighted material of others without obtaining permission of the copyright holder, you do so at your own legal risk (as I cannot predict the legal actions other copyright holders may choose to take). 10. In all cases where material from this website is quoted, please include an appropriate reference/link to my website and the corresponding footnote and copyright information for any quoted material.28 The intent of these guideline is to encourage respect of copyrighted material – whether my own, or that of others. I believe that if you stay within these guidelines, you will limit your own legal risk of a potential copyright violation. Please practice common decency in using this website. Return to List of Topics
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Notes and References 1. United States Copyright Office, http://www.copyright.gov. 2. United States Copyright Office, “Copyright Basics,” http://www.copyright.gov/circs/circ01.pdf. 3. United States Copyright Office, “International Copyright Relations of the US Copyright Office,” http://www.copyright.gov/circs/circ38a.pdf. 4. “Fair Use,” United States Copyright Office, http://www.copyright.gov/fls/fl102.html. 5. “Fair Use,” United States Copyright Office, http://www.copyright.gov/fls/fl102.html. 6. See http://en.wikipedia.org/wiki/Fair_use for background information. 7. See http://en.wikipedia.org/wiki/Fair_use for background information.. 8. See http://en.wikipedia.org/wiki/To_be,_or_not_to_be for background information. 9. See http://en.wikipedia.org/wiki/Fair_use for background information. 10. See http://en.wikipedia.org/wiki/Harper_%26_Row,_Publishers,_Inc._v._Nation_Enters for background information. 11. Lloyd L. Rich, “Fair Use Intepretations and Guidelines – The Fair Use Doctrine Part II,” http://www.publaw.com/fairuse.html. 12. “Clearing Permissions and Obtaining Releases and Consents,” http://www.ucpress.edu/content/authors/pdfs/perms.pdf. 13. “Fair Use of Copyrighted Material,” http://www.utsystem.edu/ogc/IntellectualProperty/copypol2.htm. 14. “Authors Permission Guidelines,” http://www.press.uchicago.edu/Misc/Chicago/copy_and_perms.pdf. 15. “Fair Use of Copyrighted Material,” http://www.utsystem.edu/ogc/IntellectualProperty/copypol2.htm. 16. Fair Use of Copyrighted Material,” http://www.utsystem.edu/ogc/IntellectualProperty/copypol2.htm; “Measuring Fair Use: The Four Factors,” http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html; “Summaries of Fair Use Cases,” http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-c.html#1; Lloyd L. Rich, “How Much of Someone Else's Work May I Use Without Asking Permission?: The Fair Use Doctrine, Part I,” http://www.publaw.com/work.html; Lloyd L. Rich, “Fair Use Interpretations and Guidelines – The Fair Use Doctrine Part II,” http://www.publaw.com/fairuse.html. 17. See http://en.wikipedia.org/wiki/Fair_use. 18. Although no two legal cases are alike, the fines for copyright infringement can be very steep. One famous case involved an Internet Forum that posted copies of full length articles from several newspaper sources (rather than excerpts and hyperlinks). The website owners defied a cease-and-desist letter and ended up losing a $1 million settlement. See http://en.wikipedia.org/wiki/L.A._Times_v._Free_Republic for background information. 19. “University of Chicago Press – Guidelines for Fair Use of Our Publications,” http://www.press.uchicago.edu/Misc/Chicago/permissions.html. 20. The UC-Press “Authors: Book Proposal Guidelines,” states that a printed page holds approximately 450 words, http://www.ucpress.edu/resources.php?p=guidelines. 21. See http://en.wikipedia.org/wiki/Wikipedia:Close_paraphrasing for background information. 22. “Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code (Circular 92)”, Chapter 1, Section 102.b, http://www.copyright.gov/title17/92chap1.html#102.
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23. Douglas Adams, The More Than Complete Hitchhiker’s Guide (New York: Bonanza Books, 1989), “The Restaurant at the End of the Universe,” Chapter 19, pp. 242-243. 24. “Copyright Registration for Online Works,” United States Copyright Office, May 2009, http://www.copyright.gov/circs/circ66.pdf. 25. United States Copyright Office, “Copyright Basics,” http://www.copyright.gov/circs/circ01.pdf. 26. More information about on-line printing services is contained in the About Printing document accessible at: http://sites.google.com/site/factofevolution/. 27. An example of a proper reference/link to my website is: David M. Kern, The Fact of Evolution?,
, , , http://sites.google.com/site/factofevolution/. If you are quoting from the “PDF Print Version” of the entire book, please include “Print Version” before the page number – as the page numbers for the print version are different than for the individual chapters. 28. An example of a proper reference/link to my website is: David M. Kern, The Fact of Evolution?, , , , http://sites.google.com/site/factofevolution/. If you are quoting from the “PDF Print Version” of the entire book, please include “Print Version” before the page number – as the page numbers for the print version are different than for the individual chapters.
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