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

"Roy Murphy (wireless)" writes:

:
: On Thu, 3 Oct 2002 12:15AM -0500, Tyler Ochoa wrote:
: > 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.
:
: The only other possible forum for asserting a "Right to Fair Use" that I
: can think of is that Fair Use should allow someone to bypass DRM
: restrictions to make Fair Uses of copyrighted materials protected by
: such. If Fair Use is merely a defense and not an affirmative right, then
: such an argument would fail. I think this is the real context of the
: "Fair Use is only a defense" meme.

I would suggest that ``fair use'' may be available under the Copyright Act and the case law interpreting that Act, and that in that case, in Hohfeldian terms, it is a ``privilege'' (or as some prefer, a ``liberty'') and not a ``right'' (or ``claim right''), but that when one speaks of ``fair use'' as a ``right,'' it is usually a reference to a subset of the Constitutional Rights of Freedom of Speech and Freedom of the Press guaranteed by the First Amendment, in which case it is not only a ``privilege'' or ``liberty,'' the latter term being the preferred one in the constitutional context, but also an ``immunity'' since no one has the (lawful) ``power'' to to deprive one of that liberty.

Thus, quibbling, I would say that the constitutional right of fair use, which gives one the privilege of bypassing DRM restrictions, if one can figure out a way of doing so, is not an ``affirmative right,'' but rather an ``affirmative liberty'' (which is a negative sort of right).

A great deal of the constitutional law of the last century dealt with conflicts between ``property'' conceived as a bundle of ``claim-rights'' and ``privileges'' with respect to a thing, on the one hand, and the ``liberties'' and ``immunities'' contained in the Bill of Rights, on the other. This conflict, however, hardly arises in the context of copyrights, not only because the ``work'' that is the subject of a copyright is not the sort of thing that counts as a ``thing'' in the Constitutional Law of Property, but, more importantly, because the claim-right of a copyright can only be created by an act of congress (or a state or other legislature) and the First Amendment provides that Congress shall pass ``no law abridghing the freedom of speech and of the press.''

Thus, in a conflict between those who claim property rights, i.e., claim-rights, in works of authorship and those who claim the constitutionally protected liberty of making fair-use of those works, the burden clearly should be on those asserting the claim-right, once the defendant has established that he would be deprived of that liberty were the plaintiff to prevail. But that has nothing to do with the burden of going forward, not with the initial burden of pleading an affirmative defense or establishing that the defense is colorable.

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
        NOTE: junger[_at_]pdj2-ra.f-remote.cwru.edu no longer exists