[WikiEN-l] Getting rid of bad fair use

[Anthony DiPierro]

On 5/19/06, Fastfission <fastfission at gmail.com> wrote:
> 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.
>
Nor do I.  You find a source, I'll find two.  We could keep it up for
a long time, but suffice it to say it seems like there's not a
consensus, among lawyers or among the general public, on whether or
not fair use is a right.

> "Fair Use is not a right...it is a defense to an infringement claim"
> http://library.case.edu/copyright/fairuse.html

Searching google for "fair use is a right" I get 200 hits.  Searching
for "fair use is not a right" I get 99.  Do we need to start going
through and evaluating the credibility of the sources?  Maybe see
which ones are more impartial?

> "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
>
I totally agree that fair use is a defense against infringement.

> 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.
>
Again, I don't understand what it would even mean to sue somebody for
infringing upon your "fair use rights".  It doesn't make any sense to
me any more than suing for infringing upon your "right to bear arms"
or your "right to free speech" or your "right to remain silent".
Looking at [[fundamental right]] I'd add "right to marry", "right to
procreate", "right to freedom of thought", "right to religious
belief", "right to vote", etc.

> > 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.:
>
Again, I don't disagree that fair use is a defense.  I'm just saying
it's also a right.

> "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."
>
Chalk it up to terminology then.  These sentences both use the term
"affirmative right".  Going back to "right to vote", and looking at
the [[Voting Rights Act]] article, I see "U.S. citizens commonly hear
of a "right to vote," yet there is no such federal right. However, the
Voting Rights Act and three constitutional amendments that prevent
discrimination in granting the franchise have established in United
States Supreme Court jurisprudence that there is a "fundamental right"
in the franchise, even though voting remains a state-granted
privilege."  So clearly something can be a "fundamental right" but not
be an "affirmative right".

> > 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]].
>
I'm sure if the mayor of New Orleans came and confiscated copies of
Wikipedia you could sue for that too.  I'm not sure either of those
qualify, though.

> Anyway -- it's not "my" definition.

By "your definition" I simply meant the definition you were using at the time.

> 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.
>
You've once against added the term "affirmative".  I agree that fair
use is not currently recognized under US statutory law as an
*affirmative right*.  Although even that isn't the same as saying it
*isn't* an "affirmative right".  The latter is really a philosophical
question.

> > 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.

You mean like Online Policy Group successfully did in Online Policy
Group v. Diebold, Inc?

There are also cases, like JibJab vs. Ludlow, which were settled out
of court (in favor of the fair user) before a court ever ruled.

Or cases like Felten v. RIAA, where the case was mooted when the
copyright holder backed down and agreed not to sue.

> 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_.
>
Only if the fair users roll over and die, like Wikimedia is doing.

Anthony