[WikiEN-l] Getting rid of bad fair use

Ray Saintonge saintonge at telus.net
Sun May 21 08:43:04 UTC 2006

Steve Summit 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,
>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.
I too believe fair use to be a right.  So far in this thread we have 
seen that there are lawyers on both sides of the issue.  In such 
circumstances convincing evidence may not be effective.  It's still a 
good lesson on the reliability of lawyers' opinions.

>"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.
I would not use the term "fundamental" myself; I see copyright and fair 
use as derivative rights based in the faundamental right of free 
speech.  But that distinction does not materially affect my views.

>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.
I'll be the first to admit that many of the arguments we see supporting 
a specific fair use are more in the nature of an excuse than a reason.  
Copyright need not be inconsistent with information being free.  The 
information is free; only the form of its expression is copyright.  Fair 
use is a part of the copyright law, and as such should be given as much 
weight as any other section of the law.  The application of fair use 
does not imply perjury, obfuscation or any of the other tactical sallies 
that you impute to free information advocates.

>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.)
Sometimes arguments do resemble each other.  Both the honest person and 
the liar will say, "I didn't do it." but clearly for different reasons.  
Before we can seriously consider any copyright-is-wrong argument, we 
really need to look at the rights that are already available to us under 
the law.  There are enough there to obviate the need to make up any new 
ones of our own.   I don't think that either Anthony or I would allow 
ourselves to be backed into a position where we are caught defending a 
completely meritless fair use claim.  What we are saying is that people 
who want to go to court to defend their fair use claim, at their own 
expense should be entitled to do so.  The outcome of such a suit should 
not be secretly prejudged by someone who would not be a party to that suit.

That being said, and only speaking for mysaelf, there are conditions 
that I would impose to prevent the sillier claims.
    1. The real name and address of the person responsible must be known 
to Wikimedia (though not necessarily publicly).
    2. The person must make a statement of intent to defend his fair use 
    3. The person must provide a proper fair use analysis to be put on 
the relevant talk page.
    4. The person must understand that Wikimedia is required to comply 
with any take down order received.
    5. The person must is entitled to receive a copy of any relevant 
takedown order.

>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.
Jefferson was not a strong advocate of copyright laws.  In his day 
copyright was for 14 years plus a further 14 year renewal.  From 
to-day's perspective that was very reasonable.  There is no dispute 
about this being a U.S. law issue, and having it settled there would go 
a long way towards having it settled elsewhere.

Whatever the outcome, there will still be issues about downstream 
usability, but that's a different battle.


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