"Fair Use" Not in OED

Dennis R. Preston preston at MSU.EDU
Wed Feb 15 15:17:47 UTC 2006

These points are well-taken:

1) When did the "phrase" evolve into a "term" and how can we tell?
That the term also has an history is not at all surprising of course,
but that was not my original carping.

2) No doubt many such terms arise accidentally; other phrases would
have done just as well.

3) We're lucky. And in many cases in historical linguistics we
analogize from better documented to less well documented cases to
establish methods.

4) For me this is the point. What allows us to determine the
establishment of the term as a term? I'm still just fishin.


>         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
>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:
>   ---------------------- Information from the mail header
>Sender: American Dialect Society
>Poster: "Baker, John"
>Subject: Re: "Fair Use" Not in OED
>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
>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.
>The American Dialect Society - http://www.americandialect.org

Dennis R. Preston
University Distinguished Professor
Department of English
15C Morrill Hall
Michigan State University
East Lansing, MI 48824
preston at msu.edu

The American Dialect Society - http://www.americandialect.org

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