Re: Re: Re: fourth fair use factor

Section 106 grants exclusive rights, subject to limitations and exclusions in 107-120. So section 106 itself does not tell us what is infringement, actionable or otherwise. It just says that owners of copyrights have the listed exclusive rights. Proving a prima facie case of infringement is not the same thing as proving infringement. One does not violate section 106 if one is protected by 107-120.

Burdens of proof, prima facie cases, order of proof, risk of non- persuasion does not change an lawful action into any kind of infringement. Infringement is the legal conclusion at the end of the full analysis.

The copyright owner does not have a right under 106 or anywhere else to stop all copying. If my copy is protected by fair use, the owner cannot say I have infringed.

I don't mind the use of lose language here among lay folk or among law students or even among lawyers and judges and law professors when we are "just talking", but we should be more precise when circumstances call for it.

Steve

On Nov 1, 2006, at 2:28 PM, Michael Graham wrote:

> Vance: I agree with what you say, as you point out under Section
> 107, if
> there is "fair use" then the violation of rights reserved by Sections
> 106 and 106A does not constitute infringement. If those exclusive
> rights are not violated, then the 107 analysis is not necessary. I
> agree that the terminology must be used with care since "fair use"
> obviates the existence of infringement. Thus, while chronologically
> "fair use" must be raised as a defense (the defendant's burden), once
> proven it negates the infringement claim (the plaintiff's burden to
> prove in the first place).
>
> Perhaps a better terminology would be (1) violation of the Sections
> 106
> and/or 106A rights constitues violation of these rights, (2) in the
> absence of "fair use" (or other defense) this violation concsitutes
> infringement, but (3) upon proof of "fair use" (or other defense) the
> violation does not constitute actionable infringement.
>
> Michael R.
>
>
> -----Original Message-----
> From: CNI-COPYRIGHT -- Copyright & Intellectual Property
> [mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Vance R. Koven
> Sent: Wednesday, November 01, 2006 12:50 PM
> To: CNI-COPYRIGHT -- Copyright & Intellectual Property
> Subject: [CNI-(C)] Re: [CNI-(C)] 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
>
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-- 
Prof. Steven D. Jamar                     vox:  202-806-8017
Howard University School of Law           fax:  202-806-8567
2900 Van Ness Street NW         mailto:stevenjamar[_at_]gmail.com
Washington, DC  20008	                http://iipsj.com/SDJ/

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