Fastfission wrote:
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.
It doesn't matter whether it's done in "bad faith", but a court probably won't allow the plaintiff to change their position like that after they've already told the defendant they believe it to be fair use. If you're not a lawyer, I'm not surprised if the concept of estoppel is unfamiliar and difficult to follow, but this is a situation that would typically call for it to be applied.
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.
You seem to be misunderstanding, I intended to _distinguish_ this hypothetical from the case of PRA's acknowledgment that Wikipedia is making fair use. The fact that PRA is also granting us permission is a separate matter. But the fact that they agree that we would have a fair use defense means that they can't object to that defense in litigation (unless our use changes).
Whether something is "fair use" or not ought to be considered a factual matter
In legal analysis, fair use is a question of law, *not* a question of fact. It may call for interpretation of facts, but it is not something that can be determined simply by resorting to the facts.
--Michael Snow