[WikiEN-l] Getting rid of bad fair use

Anthony DiPierro wikilegal at inbox.org
Fri May 19 17:29:42 UTC 2006

On 5/19/06, sannse <sannse at tiscali.co.uk> wrote:
> I'm speaking here as someone who works on OTRS, so has to looks at cases
> like this all the time (I'm not claiming extra authority from that, just
> extra insight).
> What it comes down to is that fair use is not a right, it is a defense.

Why do people keep saying this?  Fair use is a defense.  It's also a right.

>   The only way to fully show that any image is used legitimately under
> "fair use" is to go to court and win a case where you use this as your
> defense.

You could also get a declaratory judgement or win a case against
someone abusing the DMCA.  But yeah, you'd have to go to court,
because fair use is not black and white, it's a matter of

> In this particular incident, a person with an apparently legitimate
> claim to the image asked us to remove the image, with the understanding
> that he was willing to defend his rights and test our defense in court.
It would have been nice if he had sent in a DMCA takedown notice and
the Foundation then forwarded it to the original uploader, who would
then have the opportunity to send the Foundation a DMCA putback notice
if ey chose.

> Now you may believe, and you may be right, that we would win that
> case... but it would be at a significant financial cost (and possibly
> significant other costs, but lets stick with the financial for now).
That's one advantage of insisting upon a DMCA takedown notice - now
the ball is in the court of the uploader, who can choose whether or
not it's worth the financial cost to fight.

> However, if anyone wants to agree to pay all legal costs in defending
> the use of this image - and it is /highly/ likely that there will be
> some if this image is used - then I say go ahead!  I'm sure Danny can
> arrange for a contract to be drawn up with that agreed.  I'm not sure of
> costs in the US - but I guess a few thousand as a down-payment for
> initial legal advice would be sensible too.
> --sannse

I won't make any down payment, but I'd most likely be willing to sign
such a contract.  Have Danny send me the details.


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