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

The key here is your phrase "the COURTS have held ..." Even at common law, before being encoded into statutory law, "fair use" was established ... but it was established in courts, in the context of litigation, where "fair use" was interposed as a defense to a claim of infringement. If the question is whether fair use is an independent right in itself or merely a defense to a claim of infringement, it's no answer to say "it's a right because courts have recognized it."

I am not placing myself in the "only a defense" camp; I'm only suggesting that the best argument against the "only a defense" position would have to be one that showed fair use recognized as a right outside of the context of a defense to an infringement claim.

Robert C. Cumbow
 Graham & Dunn PC
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-----Original Message-----
From: Roy Murphy [mailto:murphy[_at_]panix.com] Sent: Friday, September 27, 2002 5:41 AM To: Multiple recipients of list
Subject: 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



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