[WikiEN-l] Getting rid of bad fair use

[Fastfission]

On 5/19/06, Anthony DiPierro <wikilegal at inbox.org> wrote:
> Interesting.  I tried looking this up, because hey, if it's repeated
> over and over it shouldn't be hard to find.  The first Google hit I
> found was http://www.eff.org/cafe/gross1.html - Understanding Your
> Rights:  The Public's Right of Fair Use.  But I guess the EFF has no
> clue what they're talking about.

If you want to play "find the source", we can do that, but I don't see
the value in it.

"Fair Use is not a right...it is a defense to an infringement claim"
http://library.case.edu/copyright/fairuse.html
"Another way of putting this is that fair use is a defense against
infringement." http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-a.html

Anyway, I was just trying to explain the origin of the terminology and
what was meant by it. Yes, some groups consider it a "right", but
since you cannot sue somebody for infringing upon your "fair use
rights", it is a pretty empty designation, IMO.

> Anyway, actual written publications are a better search.  But
> books.google gives me "Fair use is the right to use copyrighted
> material..."  "Under the right of fair use..."  "But the precious fair
> use right is under attack today..."

Yes, and a search for "fair use is a defense" will come up with a
number of law textbooks too, i.e.:

"It's important to understand that fair use is a defense rather than
an affirmative
right."
"...fair use is a defense against charges of infringement, not an
affirmative right possessed by members of the public."

> You have the right to bear arms.  Who can you sue for violation that
> right?  Perhaps we're talking about different definitions of the word
> "right".  I tried looking for a legal dictionary with your definition
> in it though, and I couldn't find it.

Apparently you can sue, depending on the legal framework which you
think is violating the second amendment. There are a few cases
mentioned in our article on a second amendment rights group, [[Second
Amendment Foundation]].

Anyway -- it's not "my" definition. Legal scholars apparently hash
over whether or not fair use should be an affirmative right, but to my
knowledge nobody argues that it IS an affirmative right under current
copyright law.

> What would it mean to sue somebody for violating your fair use rights?
>  Moreover, what does it mean to violate someone's fair use rights in
> the first place?

Among the lawyers and law students I chatted with about the idea, the
basic idea was that if any big company threatened to sue you for what
was obviously fair use, you could sue them instead. I don't know how
the details would work -- I'm not a lawyer or a law student -- but the
goal was to prevent the threat of lawsuit itself to prevent fair use
from functioning effectively. As it is, it is easy for a company with
a huge legal staff to shut down small "fair users" with the threat of
endless, if futile, litigation. Lessig talks about a number of
instances where this happened in his book, _Free Culture_.

FF