Re: Re: Litigation Exception

On Thu, 25 Aug 2005, JFN wrote:

> In this instance at least, there's not a lot of room between the
> evidence of legislative intent ("courts might") and the language of
> the statute ("such as"). Even Scalia, ignoring the legislative
> history, would read the plain language of the fair use provision as
> plainly non-categorical and non-exclusive.

I would also amplify this comment with an observation that the entire clause beginning with "including" is pretty much noise for three reasons.

To recap, here's the first sentence, with that clause set out:

   Notwithstanding the provisions of sections 106 and 106A, the fair use    of a copyrighted work,

       including such use by reproduction in copies or phonorecords or by
       any other means specified by that section, for purposes such as
       criticism, comment, news reporting, teaching (including multiple
       copies for classroom use), scholarship, or research, 

   is not an infringement of copyright.

First, under the definition of "including" in section 101, the word "including" does not exclude other uses from being fair use.

Second, and related, under that same definition (but for "such as"), "purposes such as" does not exclude other purposes from supporting fair use.

Okay, those two don't make it noise, yet; they just indicate that there could be other fair uses.[1]

But the kicker that make it noise is the phrase "such use". What sort of use is "such use"? Well, it's "fair use." That's the use set out in the portion of the sentence that "including such use" is a subordinate clause[1] of. So what this sentence is really saying is:

   Notwithstanding the provisions of sections 106 and 106A, the fair use    of a copyrighted work,

       including *fair* use by blah, blah, blah, or blah, blah, blah

   is not an infringement of copyright.

Or, to really cut to the chase:

   The fair use of a copyrighted work is not an infringement of copyright.

That sentence, plus the Four Factors, really sums up the fair use doctrine. The stuff in the middle is interesting as being illustrative, but by no means does it mean that all uses in that middle are fair uses; or that any uses not in that middle are not. Mostly it's blah, blah, blah, and the proper construction of the sentence reads it that way.

[1] Sort of like what the Ninth Amendment would be if a judge ever noticed it.

[2] Insert your own North Pole elf joke here. Received on Fri Aug 26 2005 - 02:15:30 GMT