[WikiEN-l] Is it true...

[Anthony]

On 12/21/06, Anthony <wikilegal at inbox.org> wrote:
> On 12/21/06, theProject <wp.theproject at gmail.com> wrote:
> > On 12/21/06, Anthony <wikilegal at inbox.org> wrote:
> > >
> > > On 12/20/06, Guy Chapman aka JzG <guy.chapman at spamcop.net> wrote:
> > > > that one may not upload a small, low resolution line drawing of the
> > > > USS Enterprise? without violating copyright?
> > > >
> > > No, it isn't.  Fair use is not a violation of copyright...
> >
> >
> > According to what I understand, fair use is a defence for copyright
> > violation -- thus it assumes that copyright violation has already occurred.
> >
> You're half right.  Fair use is a defense for copyright violation.
> But if you successfully defend against a charge of copyright
> violation, it means the copyright violation hasn't occurred.  Copying
> may have occurred, but not a copyright violation.
>
To change the topic slightly, I was quite pleased to see that the
Wikipedia article on [[Fair Use]] dispels the myth that fair use is a
defense and not a right (a myth that seems to be spread by many
Wikipedians).  From the article:

---
The frequent argument over whether fair use is a "right" or a
"defense" [2] is generated by confusion over the use of the term
"affirmative defense." An affirmative defense is simply a term of art
from litigation reflecting the timing in which the defense is raised.
It does not distinguish between "rights" and "defenses", and so it
does not characterize the substance of the defendant's actions as "not
a right but a defense." The First Amendment, for instance, is
generally raised as an affirmative defense in litigation, but is
clearly a "right." Similarly, while fair use is characterized as a
defense in terms of the litigation posture, Section 107 defines fair
use as a "limitation" on copyright law and states clearly that "the
fair use of a copyrighted work ... is not an infringement of
copyright."
---

Fair use is a defense (*).  It's also a right (*).  And fair use is
not an infringement of copyright (*).

Anthony

(*) in the US