[WikiEN-l] Getting rid of bad fair use

[Peter Mackay]

> From: wikien-l-bounces at Wikipedia.org 
> [mailto:wikien-l-bounces at Wikipedia.org] On Behalf Of Anthony DiPierro
> 
> On 5/20/06, Fastfission <fastfission at gmail.com> wrote:
> > Riiight... do you have a point in this argument anymore, or are you 
> > just doing it for sport?
> >
> I'll summarize my stance in this particular argument in case you can't
> follow:  The statement that "fair use is a defense and not a 
> right" is the kind of confusing mumbo jumbo I'd expect to be 
> spouted out by the RIAA, not a Wikipedian.  Fair use is a 
> fundamental right which is part of the fundamental rights to 
> free speech, free expression, free press, etc.  While it is 
> difficult for a person to get an advance court ruling 
> guaranteeing her right to fair use in a particular case, it 
> is often possible - in fact the recent passage of 17 USC 
> 512(f) as part of OCILLA provides a promising new avenue for 
> fighting the chilling effects of copyright threat over 
> materials distributed online.

Free speech is not an absolute right, even in the USA, and freedom of
expression does not extend to taking somebody else's work and presenting it
as your own. However, if you do this and are challenged, then you may be
able to use fair use as a valid defence for your actions. It is up to a
court to determine whether your usage of someone else's work is fair use or
not; you cannot make a definitive and inviolable ruling on your own say so,
otherwise copyright would cease to exist, because all anybody appropriating
another's work would need to do is claim the right of fair use, whether it
was or not.

It is up to a court to make a ruling, not you. Of course, you may make sure
that yourusage of somebody else's work is done in such a fashion that a
court would rule in your favour, but again, this is a defence, not a right.

--Peter in Canberra