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

Your argument opens up some interesting issues.   

What is not clear is, if the right claimed is super legal, off limits to the law making power of man. Beyond the power of a society to deny to its individuals, beyond the reach of a rule of a nation state, then how does one posit a position?

The claim of every human is the right to access and use the [creative orginal-knowledge information technology] CO-kit of the society in which they find themselves. It is a basic right of man, one that is super in position to the law and the law making powers of man. It is a right so basic that it identifies with life itself because such access and use is a determinate of one's length and quality of life. Few who are not economic beneficiaries of such a policy, would agree that they should be denied access to life saving or defensive technology, even if they cannot pay, and so on.

Obviously, the strength of the state exceeds the strength of the individual, just as the power of the bully at school exceeds the rights of the picked on kid, but still that does not make the activities of the bully right, it just shows that right has yet to quash the bully.

In the case of fair use being a liberty the argument is that the limitation inherent on man's access and use in the copyright law is the liberty and that liberty begs each man's personal consent.

sterling

On Fri, 4 Oct 2002, Peter D. Junger wrote:

> "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
>
Received on Sun Oct 27 2002 - 03:56:26 GMT