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

Tyler has hit at what makes this issue interesting. The statute reads that "fair use of a copyrighted work . . . is not an infringement." It doesn't say it is a possible defense once you've been taken to court.

Yet, as a practical matter, it is only going to come up as a defense to an infringement claim. So, the difference does seem to be rhetorical. However, I still think that difference can make a difference on day to day actions because it suggests a broader approach to what might count as fair use.

Dan Lee
University of Arizona

-----Original Message-----
 >>> RCumbow[_at_]GrahamDunn.com 10/01/02 02:41PM >>> 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. <<<<<

I don't understand. How would the issue of "fair use" as a right come up in any context outside of an infringement claim? Besides, almost any defense can be characterized as a "right"; the real question is, does doing so have any significance? The only significance I see is rhetorical, which may be enough to make it worth arguing over, but it doesn't affect its day-to-day operation.

Fair use was developed in the courts of appeals, is recognized by statute, and one can bring an action seeking a declaratory judgment that a particular use is fair. To that extent, it can be characterized as a "right." But procedurally, it operates as a defense to infringement. Perhaps the copyright owner should have the burden of proof instead of the user, but the courts have held otherwise.

Tyler T. Ochoa
Professor and Co-Director
Center for Intellectual Property Law
Whittier Law School
3333 Harbor Blvd.
Costa Mesa, CA 92626
(714) 444-4141, ext. 243
(714) 444-1854 (fax)
tochoa[_at_]law.whittier.edu Received on Thu Oct 03 2002 - 16:03:56 GMT