Re: Web Sweep

On 28 Jul 98, Shelly Warwick <swarwick[_at_]sprynet.com> wrote:
>
> Gordon P. Firemark <firemark[_at_]firemark.com> wrote:
> >
> > Except that the use IS COPYRIGHT INFRINGEMENT, it just happens to
> > be a legally defensible infringement. It's not my job to assert
> > defenses on behalf of opposing parties. If the infringer gets my
> > letter, consults a lawyer, and then tells me "I'm not going to stop,
> > because I beleive my use is a "Fair Use"", then I'd probably respond
> > with a letter "carving out" the use and "authorizing" it, but warning
> > against expanding the use, etc...
>
> Fair use is not infringement! Infringement is a use which violates the
> rights of a copyright holder. Fair use does not. If what you meant to
> say that is that your clients property had clearly been copied that is
> one thing. To say the copy is infringing is another matter.

Actually, I think that fair use *is* infringement. Despite what I would consider to be unambiguous statutory language to the contrary ("Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work... is not an infringement of copyright"), the courts have nevertheless consistently held that fair use is an affirmative defense in the nature of a privilege -- a legal justification for doing something that would otherwise be wrongful. See, e.g., Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985): "Fair use was traditionally defined as 'a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent.' " The existence of a privilege does not negate the tortious nature of the tortfeasor's actions, it merely excuses them. See Restatement (Second) of Torts, section 10. Thus, it appears that one can accurately describe a fair use as an infringement, but one that is excused on equitable grounds.

Personally, I wish that the law were otherwise, that absence of fair use (once a colorable claim was raised by the defendant) was considered an element of the plaintiff's case to prove infringement. However, this is *not* the law as I understand it to exist today.

Happy trails,
Rod

Rod McCarvel
<rod[_at_]seanet.com>

"The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."

          -Anatole France Received on Wed Jul 29 1998 - 23:58:07 GMT