On 10/09/2007, David Gerard dgerard@gmail.com wrote:
On 10/09/2007, Mike Godwin mgodwin@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.