Fair Use: Right or Defense (was: Asking Permission)

'Twas brillig when RCumbow[_at_]GrahamDunn.com scrobe:
> And as for fair use rights, the question
> whether they will be lost if the public doesn't actively exercise them
> depends upon whether you believe that fair use is a "right" in the first
> place. We had a substantial discussion a few months back about whether fair
> use is an inherent right of the public to make certain uses of a
> copyright-protected work, or is only a defense to a claim of copyright
> infringement. Both views were expressed and passionately defended. The
> statute is unhelpful, merely identifying what sorts of uses "shall be fair
> use" if certain factors balance out a certain way.

I'm sorry, I didn't think that the "only a defense" camp had an argument at all. Fair Use rights predate their being formalized in a statute. If they were removed from the statute, they would not go away because the courts have held that Fair Use is required to balance the First Amendment with Copyright. Statutorially they are an affirmative defense, but that does not preclude their also being a right of the public independant of the statute.

-- 
Roy Murphy      \ CSpice -- A mailing list for Clergy Spouses
murphy@panix.com \  http://www.panix.com/~murphy/CSpice.html