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

'Twas brillig when RCumbow[_at_]GrahamDunn.com scrobe:
> 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.

What is a right but something which can be asserted in a court? There are statutory rights, like copyright, for which the terms of the right can be modified by statute. Fair Use is a stronger right than this since, in its absence in Title 17, the courts will recognize it as a necessary part of the necessary balance between the First Amendment and Copyright.

I would categorize Fair Use on a par with the Right to Privacy found in Griswold -- an unenumerated Constitutional right.

I also note that the current statute says that Fair Use is not infringement not that it is permissable infringement.

--
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