On 7/11/05, Michael Snow wikipedia@earthlink.net wrote:
Actually, a statement by the copyright holder that the use is considered fair use does serve an important purpose, and is distinct from granting a license or permission to use. The statement would probably prevent the copyright holder, should that particular use ever be litigated, from arguing a contrary position to the court. Effectively, the party claiming fair use is relieved of the obligation to prove that the use is indeed fair. See [[estoppel]]. The distinction is important because mere licenses can often be revoked at any time if no consideration is involved.
I find it unlikely that this would hold up in court, but I am not a lawyer. Fair use is such a vague thing, and specifically NOT a license, that a potential plaintiff could, in my mind, easily and plausibly say, "well, it turns out that what we then thought was fair we later didn't think was fair" and hardly be in bad faith. "We didn't think it would cause us damages, but we later found out that this was wrong," and then list off some hypothetical lost damages. Fair use is not a license, it is in our case a pre-emptive defense -- these should be not confused in any way, in my opinion.
This is why copyright owners sometimes approach people about the way copyrighted content is being used, but still offer to give permission for its use. Very often they know well enough that the situation would qualify as fair use anyway, but phrase it as granting permission while carefully insisting that "all their rights are reserved." Openly agreeing that something is fair use is very rare, and PRA's willingness to do so is a generous gesture.
Saying someone can use something but you still reserve your rights is still a form of license, however informal. The action is granting some sort of right -- this is not what fair use is about, which is a defense/assertion of a right.
I'm glad that the PRA thinks it is fair use, and no one is denying their generosity or good will. But our labeling of fair use depends on our own, independent decisions, not what the copyright holder thinks one way or another (though I've got nothing against listening to them and taking what they say into consideration!). Whether something is "fair use" or not ought to be considered a factual matter (however difficult and unpleasant it is to empirically test -- i.e., in court!). If the PRA told us that dogs have five legs -- that's fine, we'll listen to what they say, but it won't necessarily determine what we write about dogs. If they tell us they think us using their table is fair use, that's grand, we'll take their view into account, but it is still ultimately up to Wikipedia to judge. This is unlike a license of some sort, which is not a "factual" matter but is something to be granted or withheld.
FF