[Foundation-l] Is fair use a right as well as a defense?

[David Gerard]

On 10/09/2007, Mike Godwin <mgodwin at wikimedia.org> wrote:
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> David, for some reason foundation-l doesn't want to accept this
> response from my mgodwin at wikimedia.org address.
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> This is a great question, precisely because there is a big division
> among copyright theorists on what the answer is.
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> "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.
>
>
>
> --Mike Godwin
> General Counsel
> Wikimedia Foundation
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