In the world of science, a genuine “litmus test” involves chemical analysis. That is, a purple coloring matter obtained from various lichens and used as an acid-base indicator in analysis: it turns blue in bases and turns red in acids. Thus, as an acid test it is, objectively, one or the other, it can’t be both.

The chemistry is true, but the journalese is crooked. For some years, candidates for President (who might nominate Federal Judges, especially Supreme Court Justices) and all nominees for any Federal bench are closely grilled and carefully scrutinized for any trace or hint of hostility toward Roe v. Wade (1973).

Thus, any citizen who ever wrote an article or decision that opposes or even questions the pro-abortion standard (Roe v. WadeThe Way) is accused of having an unacceptable “litmus test” which is a negative judgment unworthy of or incapable of clear thinking. Of course, if you are pro-abortion (pro Roe v. WadeThe Way) that is not a mental or social barrier but rather an enlightenment blessing.

So, there is a “litmus test” here but not the way a biased media plays it—the test is: if you agree with me, welcome aboard; if you don’t agree with permissive abortion, stay at home, and at all costs, stay out of public office.

The pro-abortion bias of the elite media and news services (cf. J. O. Clifford, America 183 [7/15/00] 12-15) is so pervasive that most media slants seem not to notice how slanted and twisted their own posture is.

Sometimes the “litmus” mantra is disguised as phony tolerance in big or small tent metaphors. “Big Tent” politics has to make some room for pro-abortion advocates; whereas the Abortion Tent is free to evict any pro-lifer.

This double-standard bias for one way traffic now operates both in rhetoric and reality. For example, the national Democratic platform “firmly endorses a woman’s right to abortion” (NYTimes [7/30/00] p. 24). No pro-life Democrat is welcomed or permitted to challenge that immoral plank which, to me, sounds like a real “litmus test.” This is not just party platforms in theory, but actual campaigns and conventions.

Thus, Mrs. H. Clinton, a candidate for U.S. Senate, proclaims: “The estimates are that the next Senate is going to confirm three or four justices. I will not vote to confirm judges who do not believe that Roe v. WadeThe Way should be upheld” (NYT [5/25/00] p. B-5). Now, that is a “litmus test.”

Perhaps the classic assault against free speech was the Democratic national convention in New York, 1992. Then Gov. Robert P. Casey of Pennsylvania sought to speak on abortion to that convention and was denied the opportunity to speak by the party’s leadership, Ronald H. Brown. Thus, a twice-elected governor of a State of some size was not allowed to speak on the subject of abortion—a denial recorded in his obituary (NYT [5/31/00] p. A-25). Clearly, another true “litmus test.”

What is at issue here is part of the federal copyright law—Federal Statute 17 USC #107 “Limitations on exclusive rights: Fair Use.”

The statute states: “Not withstanding the provisions of sections #106 and #106A, the fair use of a copyrighted work, including such use by reproduction of copies or phonorecords or by other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, is not an infringement on copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purpose
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.”

Informed comment notes that although the courts have considered and ruled upon the “fair use” doctrine over and over again, no real definition of the concept has ever emerged. Since the doctrine is an equitable rule of reason, no genuinely applicable definition is possible, and each case raises questions that must be decided on its own facts. The courts have evolved a set of criteria which, although not definitive, provide a gauge or scale for balancing the equities.

The “multiple copies for classroom use” is a recognition that, under the proper circumstances of fairness, the doctrine can be applied to reproductions of multiple copies for the members of a class. However, the endless variety of situations and circumstances that can arise in particular cases precludes the formulation of exact rules in the statute. Beyond the broad statutory explanation of what “fair use” is and some applicable criteria, the courts are free and bound to adapt the doctrine to particular situations on a case-by-case basis.

Your question speaks of “personal use” while asking about “fair use.” As to application, your specific mentions present different problems.

“Computer programs” are quite specific. The Software License often comes on a sealed disk package that clearly states that by opening the sealed package you agree to be bound by the terms of agreement. If one does not agree to those terms, promptly return the unopened disk package and the accompanying items for a full refund.

Clearly, the program is treated as copyrighted material allowing the purchaser to make one copy for backup or archival purposes, to transfer the software to a single hard disk keeping the original solely for backup or archival purposes. What is clearly wrong is when A buys a program and “generously” allows B, C, and D to make their own copies for their “personal use.” That is simply theft.

Videos of the $19.95 commercial type may, over time, simply wear down or wear out. That’s the time to buy another (if available). Some people seem to think that whatever is in their present possession, by that possession, they gain some kind of unending title to it. That is not correct; they do own the copy, but that is not a just title to copyright.

The same is true, I think, for entire musical cassettes. When they wear down or wear out, buy another. When you want to record your own bit from this and bit from that for “personal use” on long drives, I see no wrong in that. Usually, the quality suffers, but it would be wrong to do the same so that you could “give” or “sell” the same to others. “Generosity” with the property of another is not a gift at all.

To duplicate an entire book is probably as impractical as it is dubious. If the book is still in print, buy another or seek out a second hand purchase. For out of print books, I have found that a polite letter of request to the publisher usually elicits a reasonable response.