[WikiEN-l] Getting rid of bad fair use

[Ray Saintonge]

Fastfission 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.
>
WP:V is not binding on the mailing list, but it sure helps.

>"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.
>
The first of those references does indeed say that fair use is not a 
right, but not the second.  Nobody is disputing that it is a defence.

Your argument that a right depends on being able to institute a court 
action as plaintiff seems very weak.  For me what supports a right is 
its statutory expression.  I think you are confusing between a right and 
the enforcement of that right.  For many rights a survey of the cases is 
likely to determine that the person proclaiming the right is the 
defendant.  We exercise free speech by saying what we want to say until 
someone objects and hauls us into court.  We don't go to the national 
censor asking for permission to publish.  (In countries where that 
permission is needed free speech may not be a right after all.)  Can you 
cite cases where the claimant to free speech was the plaintiff?

>>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."
>
OK.  So it's a defensive right, but a right nonetheless.

>>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_.
>
A lawsuit and a threat of a lawsuit are two different things.  Depending 
on the circumstances a threat of a lawsuit could itself be criminally 
illegal as abuse of process, extortion or intimidation.  The threat 
works more often than not because people are so deathly afraid of going 
to court.

Ec