[WikiEN-l] Getting rid of bad fair use

Steve Summit scs at eskimo.com
Sat May 20 17:31:59 UTC 2006

Anthony DiPierro wrote:
> 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.

Is it?  I don't see it that way.  If you have evidence to cite in
support of that claim, I'd be curious to see it.

"Fundamental rights" aren't always quite as fundamental as we'd
like them to be.  Free speech is (at least under U.S.-style
democracies) a fundamental right.  But it's not universal, even
in the West: it's not an absolute right in Germany, for example.

Lots of things which feel like they ought to be fundamental
rights, aren't.  For example, there's no fundamental right to
privacy in the U.S., much though many of us wish there were.
But it's not mentioned anywhere in the Declaration of
Independence, the Constitution, or the Bill of Rights.

Copyright is not a fundamental right; it's an artificial
construction of government, usually with the expressed goal of
promoting creative expression.

Me, I'd say that "fair use" isn't a fundamental right, either;
rather, it is an exception to copyright, a further legal
construction on top of an already legal construction.

Arguments over fair use are often something else, in disguise.
A lot of people, especially on the net, believe that the legal
construction called "copyright" is wrong and invalid; they've
heard only half of Stuart Brand's quote about "information wants
to be free" and have amplified it into "all information must be
free".  They believe that copyright law and its beneficiaries
are to be variously ignored, taunted, teased, or hunted down
and shot.  If the copyright holders seem to be gaining the upper
hand, the information-must-be-free activists believe that
(as in love and war) all is fair: defiance, guerilla action,
perjury, obfuscation, or hiding behind specious fair use claims
as a diversionary tactic.

Now, despite my seeming rhetoric, I am not trying to claim that
the copyright-is-wrong activists are wrong, nor am I suggesting
that Anthony DiPierro is a "copyright-is-wrong" activist.
(I have no idea how Anthony DiPierro feels about copyright,
but some of his arguments *sound* like the arguments of those
activists, which is why I bring all this up.)

If someone wants to believe that copyright is wrong and that all
information must be free, that's fine.  (As Thomas Jefferson
famously said, a little revolution every once in a while is a
good thing.)  But, two things: (1) please don't use "fair use"
to justify your abandonment of copyright law, because "fair use"
is part of the very same copyright law you're trying to abandon.
Also, (2) please carry out your activism somewhere other than
Wikipedia, because Wikipedia, whether you like it or not,
is a U.S. entity which is bound to honor U.S. copyright law.

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