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

[Anthony]

On 9/10/07, Delirium <delirium at hackish.org> wrote:
> 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.
>
Well, fair use hasn't always been permitted by statute.  It was first
introduced by the courts.  I seem to remember the Supreme Court
discussing this during the Eldred trial, but I'm not 100% sure of this
and if so it was dicta at best.

It's nice seeing the "fair use is a right and a defense" meme finally
catching on.  It's not that it matters from a legal standpoint (though
one day it might if congress gets overly bold).  It's that it matters
from a philosophical standpoint.  Too many people have the
misconception that fair use is a copyright violation that the courts
let you get away with.  But on that point the record is clear.  The
fair use of a work is not a copyright violation in the first place.

> So what's Wikipedia and Wikimedia's duty to exercise that right in the
> pursuit of educational value?

Wikipedia and Wikimedia's duty to exercise that right is to exercise
it to the maximum degree necessary "to empower and engage people
around the world to collect and develop educational content under a
free license or in the public domain, and to disseminate it
effectively and globally."  This, in my opinion, is very little.