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There is risk involved in everything we do. In this area, we prefer to
eliminate it altogether. If it cannot be completely eliminated, it should
be up to those who will have to pay the cost of an infringement lawsuit to
decide the level of risk with which they are comfortable. For example, the
University has accepted a certain level of risk by creating its Copyright Policy with
explanations of how to use the fair use
test. Similarly, publishers decide to accept a certain level of risk when they
establish their policies that set word limits for unlicensed
quotations.
An unlocated or unresponsive copyright owner presents a risk that the
owner will some day "appear" and be upset with a use of his or her work.
This may not be a great risk, especially when a thorough search has
revealed no owner. Nevertheless, it's a decision in which the
University or the publisher should participate, not one for the
faculty member alone.
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