[Foundation-l] Is fair use a right as well as a defense?

[David Gerard]

On 10/09/2007, David Gerard <dgerard at gmail.com> wrote:
> On 10/09/2007, Mike Godwin <mgodwin at wikimedia.org> wrote:

> > This is a great question, precisely because there is a big division
> > among copyright theorists on what the answer is.
> > "Copyright absolutists" like to class "fair use" as merely a defense
> > against an infringement claim, because doing so makes it seem narrow
> > and exceptional.
> > Free-speech theorists prefer to class "fair use" as a right that
> > derives directly from the First Amendment (or equivalent guarantees
> > in other national constitutions or under international treaties).
> > Personally, I fall into the second camp. It should be noted, however,
> > that "fair use" is built into American copyright statutes as,
> > technically, a "defense."  Constitutional lawyers like me tend to
> > believe this doesn't really answer the philosophical question -- it's
> > just a structural choice.


Mmm. I was interested in the court saying "no really, it's a First
Amendment right, you idiots." I suppose the absolutists can say the
Supreme Court hasn't considered it yet, if they want to appeal
further.


- d.