On Feb 10, 2006, at 12:00 PM, J. Noble wrote:
> At 6:50 PM -0500 2/8/06, Steven Jamar wrote:
>> Their is a nice theoretical issue as to whether the right way to
>> say it is that there is an infringement, but the infringer is
>> protected by a privilege, or whether there is no infringement at all.
>
> If it is privileged, it isn't infringement. The issue is whether
> the unauthorized use is infringing or non-infringing. Some uses are
> non-infringing because they are outside the limitations upon the
> exclusive rights granted to the copyright holder (eg., first sale);
> while other uses are non-infringing because they are within the
> privileges granted to the user (fair use).
While I agree 100% with your first sentence, I'm not sure I follow the distinction in the rest of the paragraph.
All rights (section 106) are, under the express language of the Copyright Act, "Subject to sections 107-122." (And the Supreme Court has underscored this.) Accordingly, all copyrights are "subject to" both the fair use right (Section 107) and the first sale doctrine (both a a doctrine AND as codified in Section 109).
Fair use is pretty much required by the First Amendment, so fair use rights are both statutory (and superior to copyrights insofar as Section 107 is concerned) and a constitutional right (insofar as the Supreme Court has made it clear that it is a constitutional requirement to have some degree of fair use).
The first sale doctrine originated as a limitation on the copyright holder (e.g., the 1908 case declaring that the copyright gave no right to control resale pricing of books) and was eventually recognized as a right conferred upon the owner of a lawfully made copy (the current codification in Section 109, which describes it as an entitlement to do something over the objection of the copyright owner).
I suspect that the main reason fair use gets described as a defense is that (apart from copyright owner bias), as a practical matter, it was historically impossible to prevent fair use, so the controversies only arose after someone had made the use, and was sued. Today, thanks to digital engineering, it is quite possible for copyright owners to infringe upon the fair use rights of others by various feats of engineering, so logically, anyone whose right of fair use is impaired by the copyright owner should have a right of action. Thus, if one is sue for copyright infringement, I agree that the plaintiff would bear the burden of proving it is infringing, which includes the burden of eliminating the fair use "defense" if raised (though the defendant would have the burden of coming forward with evidence of fair use). But if a plaintiff sued a copyright owner for a declaratory judgment of fair use, or for an injunction against the copyright owner's prevention of fair use, then it would seem that the burden would be on the plaintiff to prove that the copyright owner was indeed unlawfully preventing fair use, including the burden of proving fair use.
John
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