On 10/09/2007, David Gerard <dgerard(a)gmail.com> wrote:
On 10/09/2007, Mike Godwin
<mgodwin(a)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.