Re: Re: fourth fair use factor

I'm a little disturbed by the proposition that relying on the fair use "defense" is an admission of infringement. Infringement is a legal conclusion, not a statement about facts. To rely on fair use is to say, in all likelihood, that something was copied, but that doesn't in the slightest bit concede infringement. Even Section 107 of the US Copyright Act says as much: "...fair use...is not an infringement of copyright." While as a practical and procedural matter fair use is treated as an affirmative defense, because of the awkwardness of making a plaintiff in all cases go through the four factors analysis on every claim to show that there was *no* fair use, conceptually it is not an affirmative defense; the absence of fair use is inherently part of the principal tort of infringement.

While it is not unexpected for laypeople casually to confuse "copying" with "infringement," I think lawyers should be more careful in how they use the legal terminology.

Vance

On 10/31/06, jrfriedman[_at_]litproplaw.com <jrfriedman[_at_]litproplaw.com> wrote:

> I also am aware that if one is relying on a fair use
> defense, one is conceding that one has committed
> infringement.

-- 
Vance R. Koven
Boston, MA USA
vrkoven[_at_]world.std.com