Re: Web Sweep

On Wed, 29 Jul 1998, Rod McCarvel <rod[_at_]seanet.com> wrote:
>
> 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.

As I read it fair use is an affirmative defense against a "claim" of infringement. Fair use is not an infringement as is noted in the reference to the statutory language in the message below.

I can claim anything I want --- Doesn't make it so.

George L. Abbott
Head, Media Services Department
Syracuse University Library
Syracuse, NY 13244-2010
(V) 315-443-2438
(F) 315-443-9510
Internet: glabbott[_at_]syr.edu Received on Thu Jul 30 1998 - 20:06:35 GMT