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

Delirium delirium at hackish.org
Mon Sep 10 21:00:19 UTC 2007


David Gerard wrote:
> On 10/09/2007, David Gerard <dgerard at gmail.com> wrote:
>   
> 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.
>   

Well, as long as fair use is permitted by statute, there's really no 
occasion to consider whether it's also required by the U.S. constitution 
or not, since you can't really appeal a point that already went your 
way. It'd only be if it *weren't* permitted by statute (or if the statue 
were exceptionally narrow) that someone would have an occasion to raise 
a constitutional argument.

-Mark




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