[WikiEN-l] Getting rid of bad fair use

[Anthony DiPierro]

On 5/20/06, Steve Summit <scs at eskimo.com> wrote:
> 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.
>
That fair use is a fundamental right is really a philosophical
statement, and essentially an opinion.  That said, there is a long
history of the *recognition* of the right to fair use, in statutory
law, in common law, and in court precedent.

A more interesting question is whether or not fair use is
Constitutionally required.  From my research on this it seems to be
that it is, but this doesn't seem to have been explicitly stated in
any US Supreme Court rulings.  See
http://www.law.duke.edu/journals/dltr/articles/2002dltr0003.html

> "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.
>
I'd say that free speech is a universal fundamental right, even though
the governments of some countries don't recognize it.

> 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.
>
While it's not *explicitly* mentioned in those documents, both the US
congress and the US courts have recognized the right to privacy.

> 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.)
>
FWIW, I *am* a "copyright-is-wrong" activist, though I don't believe
that my arguments I've been making in this thread rely on that.

I'm also a big believer that there are many instances in Wikipedia
where the doctrine of fair use is abused in a way which is unhelpful.
It is my opinion that explicitly licensed (to everyone) and/or
undisputably public domain content should be preferred, not for the
sake of the legal principles themselves but so that the content can be
distributed in as many jurisdictions as possible without any fear of
legal reprecussions.  However, I have come to recognize the fact that
it is impossible to create a quality encyclopedia which is legal to
distribute in all jurisdictions of the world.  In terms of images and
copyright law I believe this comes into play when it is the very image
itself which is being discussed in the encyclopedia article.

> 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.
>
Regarding 1), I think the whole principle of copyleft relies on the
fact that it *is* OK to use copyright law against itself.  Regarding
2), US copyright law includes fair use, and it includes OCILLA.

Anthony