"Fair Use" Not in OED

[Baker, John]

        I don't think I'm in disagreement with Jon or dInIs here.
Specifically, I agree that a term like "fair use" was lexicalized as a
distinct sense only when it had acquired a technical application.  But I
think a few points are worth making:

        1.      Terms evolve.  When we say "fair use," we mean pretty
much the "fair use" discussed in Lawrence v. Dana (1869).  But the court
and the parties in that case meant the same "fair use" that was
discussed in Curtis (1847) and Henley (1821).  They didn't see their use
of the term as being fundamentally different.

        2.      In fact, the uses by Curtis and Henley are recognizable
to us, even though the term had not yet been lexicalized as a distinct
sense.  Yes, from the point of view of Curtis and Henley, they didn't
have to say "fair use"; they could have said, for example, "fair
copying."  But, as it happened, they did use the term that has become
familiar to us.

        3.      The precision of these writings makes it relatively easy
to see what's going on here.  That's not necessarily typical.

        4.      Not a point, but a question for our lexicographers:  In
a case like this, how far back should the history of a term be traced?
Should we think of "fair use" as going back to 1821, or only to 1869?
Is the answer different for a dictionary like the OED, which gives
quotes, than for a dictionary like M-W, which just gives a date?


John Baker



-----Original Message-----
From: American Dialect Society [mailto:ADS-L at LISTSERV.UGA.EDU] On Behalf
Of Jonathan Lighter
Sent: Tuesday, February 14, 2006 8:11 PM
To: ADS-L at LISTSERV.UGA.EDU
Subject: Re: "Fair Use" Not in OED

I'm with dInIs on this.  The legal "fair use" was just another fair use
until it became understood as a specific legal principle in relation to
copyright (and possibly other matters).   It was lexicalized as a
distinct sense only when it had acquired a technical application.

  JL

"Baker, John" <JMB at STRADLEY.COM> wrote:
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Sender: American Dialect Society
Poster: "Baker, John"
Subject: Re: "Fair Use" Not in OED
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I don't think that there's any hard and fast rule to tell the difference
between a completely transparent collocation and its emergence as a
term. This 1847 use (and the earlier 1821 example that Fred found) is
indeed a transparent combination of the more or less technical term
"fair" and the everyday word "use." Early cases refer to "fair
quotation," "fair abridgment," and so forth.

In the 1869 case, however, "fair use" is taken as an established phrase,
with sentences like "The defence of 'a fair use' is not tenable in this
case." (Incidentally, that's from a summary of the lawyers'
arguments, not the court's opinion proper.) Certainly "fair use" today
is a standalone term and should be in dictionaries, as indeed it is.
(M-W Collegiate has it, though it lists a first use of 1945.)

But the 1869 and later uses do derive from these earlier, originally
transparent uses. Shouldn't these initial uses be considered part of the
term's history, even though, if the phrase's development had stopped
there, nobody would consider it a separate term?

John Baker



-----Original Message-----
From: American Dialect Society [mailto:ADS-L at LISTSERV.UGA.EDU] On Behalf
Of Dennis R. Preston
Sent: Tuesday, February 14, 2006 10:51 AM
To: ADS-L at LISTSERV.UGA.EDU
Subject: Re: "Fair Use" Not in OED

How do we know when a term is a term. If I said

"He didn't make very fair use of his background advantages among his
schoolmates" I take that not to be a term.

But if I say

"That's not in accordance with the fair use principle of copyright."

it is.

Might not the 1847 use be part of the birth of a term rather than a term
itself? How can we tell the difference between a completely transparent
collocation and its emergence as a term?

Just thinkin.

dInIs

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