On 5/19/06, Anthony DiPierro
Interesting. I tried looking this up, because
hey, if it's repeated
over and over it shouldn't be hard to find. The first Google hit I
found was http://www.eff.org/cafe/gross1.html
- Understanding Your
Rights: The Public's Right of Fair Use. But I guess the EFF has no
clue what they're talking about.
If you want to play "find the source", we can do that, but I don't
the value in it.
WP:V is not binding on the mailing list, but it sure helps.
"Fair Use is not a right...it is a defense to an
"Another way of putting this is that fair use is a defense against
Anyway, I was just trying to explain the origin of the terminology and
what was meant by it. Yes, some groups consider it a "right", but
since you cannot sue somebody for infringing upon your "fair use
rights", it is a pretty empty designation, IMO.
The first of those references does indeed say that fair use is not a
right, but not the second. Nobody is disputing that it is a defence.
Your argument that a right depends on being able to institute a court
action as plaintiff seems very weak. For me what supports a right is
its statutory expression. I think you are confusing between a right and
the enforcement of that right. For many rights a survey of the cases is
likely to determine that the person proclaiming the right is the
defendant. We exercise free speech by saying what we want to say until
someone objects and hauls us into court. We don't go to the national
censor asking for permission to publish. (In countries where that
permission is needed free speech may not be a right after all.) Can you
cite cases where the claimant to free speech was the plaintiff?
written publications are a better search. But
books.google gives me "Fair use is the right to use copyrighted
material..." "Under the right of fair use..." "But the precious
use right is under attack today..."
Yes, and a search for "fair use is a defense" will come up with a
number of law textbooks too, i.e.:
"It's important to understand that fair use is a defense rather than
"...fair use is a defense against charges of infringement, not an
affirmative right possessed by members of the public."
OK. So it's a defensive right, but a right nonetheless.
What would it
mean to sue somebody for violating your fair use rights?
Moreover, what does it mean to violate someone's fair use rights in
the first place?
Among the lawyers and law students I chatted with about the idea, the
basic idea was that if any big company threatened to sue you for what
was obviously fair use, you could sue them instead. I don't know how
the details would work -- I'm not a lawyer or a law student -- but the
goal was to prevent the threat of lawsuit itself to prevent fair use
from functioning effectively. As it is, it is easy for a company with
a huge legal staff to shut down small "fair users" with the threat of
endless, if futile, litigation. Lessig talks about a number of
instances where this happened in his book, _Free Culture_.
A lawsuit and a threat of a lawsuit are two different things. Depending
on the circumstances a threat of a lawsuit could itself be criminally
illegal as abuse of process, extortion or intimidation. The threat
works more often than not because people are so deathly afraid of going