Reminder: Fair Use Is A Right — And Not 'An Exception' Or 'A Defense'

from the it's-free-speech dept

This week is Fair Use Week, according to the Association of Research Libraries, and that’s as good a time as any to remind everyone that it’s wrong to refer to fair as merely a “limitation or exception” to copyright law — or merely a defense to infringement. It is a right that is protected by the First Amendment. The Supreme Court has regularly referred to “fair use” as a “safeguard” of the First Amendment, allowing copyright law to be compatible with the First Amendment. As such, it seems bizarre that fair use is not seen as the default, rather than the other way around. If we are to protect the First Amendment, and not allow for speech to be stifled, at the very least, we need a greater recognition of the importance of fair use in guaranteeing that the First Amendment’s principles of free speech are allowed to thrive.

Freedom of expression is a right that may not be abridged by the government — except in a few narrowly defined cases. Copyright is one of those cases — and we can argue about whether or not that’s appropriate, but at the very least, it’s important to shift our view from thinking “copyright” is the norm and that fair use is a small “exception,” to one where we recognize that free expression is the norm, with fair use making sure that freedom of expression is enabled, even when copyright is present.

Unfortunately, too many powers that be in legacy industries have sought to flip this equation. They deny that fair use is a right — insisting it is merely a “defense” to infringement. While it is true that under current law, in order to be able to demonstrate your fair use rights, you need to raise it as an affirmative defense to an accusation of copyright infringement, that does not diminish the fact that fair use is simply a procedure for guaranteeing your First Amendment rights. It is not a small issue that’s only important in academic debate, but rather a central issue that determines just how strongly we, as a society, believe in the First Amendment.

Finally, how could we conclude a post on fair use without including some fair use in it? How about this video, misleadingly called The Infringement Melody (Section 107 of the Copyright Act clearly states that “the fair use of a copyrighted work… is not an infringement of copyright”), which appears to be a student project to come out of a popular Yale class on Law, Technology and Culture, in which fair use is a big part of the curriculum:

F-A-I-R U-S-E… find out what it means to me!
Also, be on the lookout for tomorrow’s podcast… all about fair use as well.

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Comments on “Reminder: Fair Use Is A Right — And Not 'An Exception' Or 'A Defense'”

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antidirt (profile) says:

[I]it’s wrong to refer to fair as merely a “limitation or exception” to copyright law — or merely a defense to infringement. It is a right that is protected by the First Amendment. The Supreme Court has regularly referred to “fair use” as a “safeguard” of the First Amendment, allowing copyright law to be compatible with the First Amendment. As such, it seems bizarre that fair use is not seen as the default, rather than the other way around.

It’s hilarious that you demand that fair use is a “right,” but you don’t bother to define what the word “right” means. Do you even know what it means?

I’ll tell you: A right is a legally enforceable claim against another that he should do some act or refrain from doing some act. For example, I own my land, and I have a right to exclude others from entering my land. If you enter my land without my consent, I have a legally enforceable claim against you. I can obtain damages and an injunction against you for the trespass. That’s a right.

Fair use is not a right. A would-be fair user has no legally enforceable claims against anyone that they should do or not do some act. I have lots of books on my bookshelf. You have no legally enforceable claim against me as to my books. You can make fair use of the works contained therein, but only if you can gain legal access to them first. I have no duty to produce the books to you because you have no right. You can’t sue me to produce the books because you have no right.

Rights and duties go hand in hand. If you have a right, someone else has a duty. With fair use, there is no duty. No one owes a would-be fair user any duty. There is no duty because there is no right. Instead, fair use is a privilege. It negates the duty one would otherwise have not to copy a given work. The right is with the rightholder, that is, the copyright owner. That owner has exclusive rights, that is, legally enforceable claims against others that they should not copy the work. Fair use relieves the fair user of the duty that would be otherwise owed to the rightholder.

As far as the Supreme Court holding that fair use may be grounded in the First Amendment, so what? That doesn’t mean it’s a right. The First Amendment creates a privilege to use the work. It negates the duty to not use it. But it’s still not a right because there’s no legally enforceable claim. The First Amendment doesn’t give you the right to break into my house so you can make fair use of the books on my bookcase. You still can’t sue me and force me to let you make fair use of my books.

The fact is that the Supreme Court has explicitly said that it’s an “affirmative defense.” Defenses are not necessarily rights. You have no right to use the work, just a privilege. It’s a defense because it’s not a right. If it were a right, there would be a fair use claim. What claim is there for a would-be fair user? None. Because there is no right. You simply have no right to make fair use of a work, and that’s why there’s no cause of action available to a would-be fair user. And it’s why it operates as an affirmative defense.

I don’t expect a substantive response, Mike, but it would be nice. If you have some other definition of “right,” please do share. Your argument that it’s a “right” would be better if you bothered to tell us what you think a “right” is.

antidirt (profile) says:

Re: Re: Re:

What duty is associated with the right to freedom of expression under the First Amendment?

In the sense that we’re discussing “rights,” the First Amendment doesn’t create them. It states: “Congress shall make no law . . . abridging the freedom of speech[.]” This creates in Congress a disability. It has no ability to create laws abridging our freedom of speech. But that’s not the same thing as a right to speak freely.

Anonymous Coward says:

Re: Re: Re: Re:

And yet, it seems pretty universally understood and accepted that the First Amendment protects a “right to freedom of speech,” meaning speech un-impinged by the laws created by congress.

And no, of course it does not create a “right to speak freely” in the sense that you could petition someone under your first amendment rights to let you speak in their home or private forum — that’s a facile understanding of free speech that we see all too often.

But copyright is a different thing altogether. It’s a law created by congress in which huge portions are explicitly and entirely about controlling various forms of expression, potentially making some of it unprotected and illegal. And as with other such areas of law, like libel and defamation, that means it needs strict, narrow limitations in order to comply with the first amendment.

And, as the court has noted multiple times, fair use is one of those limitations for copyright, and a critical one, the absence of which would render it unconstitutional. But here’s the thing you are ignoring:

They are not talking narrowly about fair use as it is currently structured, an affirmative defense — they are talking broadly about the concept of fair use as a right people have.

That’s what’s important, and what this post is saying: you have a right to make certain uses of content, without paying one shred of attention to its copyright status. You have a right to make use of it for criticism, for reporting, for education, for transformative work, and for a huge variety of other things that we call “fair”.

The current structure of law that protects that right — a vaguely defined affirmative defense with four pillars that are widely misunderstood even among lawyers and judges — is imperfect at best. It’s clear that a total lack of any fair use defense would render copyright unconstitutional, and it could reasonably be argued that even the current incarnation of fair use is insufficient and copyright is currently unconstitutional.

tl;dr: You have a right to make fair use of creative works. The fact that the law treats that right as a defense shows that the law is wrong, it doesn’t invalidate the right.

Anonymous Coward says:

Re: Re: Re:

It is a right, but people think you should not have that right.

Funny thing… the African Americans quite literally back the party that wants to remove their guns… its like poetic justice and the Dred Scott case. That part were they did not want to make them citizens because then they could have guns?

They really like to their their own destruction in by the front door don’t they? They even vote for their own destruction. Good luck with that folks!

Additionally keeping and bearing arms shall not be infringed… which means they cannot even so much as legally ask you to wait 2 seconds for a background check.

Let me ask you this? do you truly support the 2nd amendment or are you like everyone else? Take big but ultimately take your ball and go home?

Right now, I would trust a criminal with a gun before I would a police officer.

antidirt (profile) says:

Re: Re: Re:

Guess you didn’t read the article, but that would be shocking.

“Freedom of expression is a right that may not be abridged by the government…” And fair use falls within that.

I read the article. And I cringed at the pain of Mike’s purported constitutional analysis. Telling Congress they can’t abridge your freedom of speech is not the same thing as telling you you have the right to speak freely.

jupiterkansas (profile) says:

Re: Re:

Fair use is not a right. A would-be fair user has no legally enforceable claims against anyone that they should do or not do some act. I have lots of books on my bookshelf. You have no legally enforceable claim against me as to my books. You can make fair use of the works contained therein, but only if you can gain legal access to them first. I have no duty to produce the books to you because you have no right. You can’t sue me to produce the books because you have no right.

What a misguided analogy. The right isn’t that I can forcibly take YOUR books and make fair use of them, but that YOU can take YOUR books and make fair use of them. Why would I want to make fair use of your books when I have my own? You’re again mixing up physical property with intangible property.

To use your terms – the copyright owner owes the would-be fair user a duty. They cannot stop you from making copies, and you do not need their permission to do so. That’s is the right to fair use.

Anon says:

Re: Re: Re:

What a misguided analogy. The right isn’t that I can forcibly take YOUR books and make fair use of them, but that YOU can take YOUR books and make fair use of them. Why would I want to make fair use of your books when I have my own? You’re again mixing up physical property with intangible property.

You have no “right” to make fair use of the books in your home. You have an affirmative defense, should the author of the book sue. If it was a right, you would be able to sue the author for declaratory judgment for a court order giving you the right to use the book under your presumed fair use. Part of having a legal right is a duty to not infringe on that right. If I own the copyright to a book, everyone else has a duty to not reproduce that book without permission. If I own land, everyone else has a duty to not go on that land without permission. However, no one owes you a duty to allow you to make fair use. You can’t sue anyone to enforce your rights to fair use.

Gwiz (profile) says:

Re: Re: Re: Re:

If it was a right, you would be able to sue the author for declaratory judgment for a court order giving you the right to use the book under your presumed fair use.

Incorrect. A party can most definitely sue for a declaratory judgment concerning fair use.

As a matter of fact that is exactly what GoldieBlox did concerning the use of The Beastie Boys music. They ended up settling before it went to court:

https://www.techdirt.com/articles/20131122/17002425340/missed-opportunity-beastie-boys-should-have-supported-viral-parody-girls-song-rather-than-claiming-infringement.shtml

antidirt (profile) says:

Re: Re: Re:

What a misguided analogy. The right isn’t that I can forcibly take YOUR books and make fair use of them, but that YOU can take YOUR books and make fair use of them. Why would I want to make fair use of your books when I have my own? You’re again mixing up physical property with intangible property.

If you truly had a right to make fair use of a work, then you would have a right against me such that I couldn’t prevent you from exercising that right. A right implies a duty of noninterference. If you had the right, I’d have the duty to not interfere with your right. I have no such duty because you have no such right. I can interfere with your fair use attempts all day long because you only have a privilege, not a right.

To use your terms – the copyright owner owes the would-be fair user a duty. They cannot stop you from making copies, and you do not need their permission to do so. That’s is the right to fair use.

A copyright owner owes a fair user no duty whatsoever. He can make the exercise of the fair use privilege as hard as he wants–even preventing it altogether if he chooses.

Rikuo says:

Re: Re: Re: Re:

“A copyright owner owes a fair user no duty whatsoever. He can make the exercise of the fair use privilege as hard as he wants–even preventing it altogether if he chooses.”

Yes, – to a point. Let’s imagine that on your bookshelf you have a document, The Greatest Story Ever told (c). It is the only copy in existence. You own the physical paper it is written on, and of course, you have the copyright to it.

Your property rights regarding the paper, and your home/land, prevent me from barging in, trespassing and taking that singular copy of The Greatest Story Ever Told and then exercising fair use in reviewing it.

However, that is not what is happening in today’s world. In today’s world, we have the internet, where copies are essentially infinite. I would agree that I cannot storm into your house and look at your copy of a certain famous novel, but you definitely should not be able to prevent me from viewing your book on my ereader just because I torrent it from somebody else who offered it up for me to download. That would be an over-reach on your part, it is you using your copyright as a tool to dictate what I and others do with our physical equipment.
Think about it this way – why did Sony disable Other OS for Playstation 3 consoles? How did they justify their actions? Was it not a violation of MY property rights to have a desired feature of a piece of equipment that I bought and own stripped away, with other features being held hostage to get me to agree to the removal?

Ninja (profile) says:

Re: Re: Re: Re:

And you’d lose. And possibly be smacked by the courts due to abuse of the judicial system.

Nobody has to ask for permission to build onto the work of whoever. It is sad that the cost of a lawsuit is enough of a threat to prevent people to fight back for exercising their rights.

Also, obligatory depreciative remark: you are a moron.

jupiterkansas (profile) says:

Re: Re: Re: Re:

How can a copyright owner prevent fair use? They can go to court and attempt to prevent it, but if the court declares that it is fair use, then the copyright owner can do nothing.

The privilege belongs to the copyright holder, not the fair user. The law grants the copyright holder a privilege (mistakenly called a right, which the way you argue semantics seems to be whole source of the problem) that says even though copying is the most naturally instinctive thing in the world, only the copyright holder may do it except in certain circumstances. Fair use is a restriction on the copyright holder, not the public.

AJ says:

Re: Re:

“5. Is Fair Use a Right or Merely a Defense?

Lawyers disagree about the conceptual nature of fair use. Some lawyers claim that fair use is merely a defense to a claim of copyright infringement. Although fair use is often raised as a defense, many lawyers argue that fair use can also be viewed as having a broader scope than this. If fair use is viewed as a limitation on the exclusive rights of copyright holders, fair use can be seen as a scope of positive freedom available to users of copyrighted material. On this view, fair use is the space which the U.S. copyright system recognizes between the rights granted to copyright holders and the rights reserved to the public, where uses of works may or may not be subject to copyright protection. Copyright law gives the decision about whether copyright law applies to a particular use in this space to a Federal Court judge, to decide after weighing up all relevant factors and the underlying policies of copyright law.”

It seems this issue is far from settled. I’ve read a few different arguments on this… defense vrs right..the above quote seemed to explain it pretty well.. But to me, It almost appears that if something is determined “fair use” then it is your right to use it in that capacity, but it has to be determined to be “fair use” first… It’s the determination that seems to be iffy… If “I” determine that it’s fair use, then it’s my right under “rights reserved to the public”? I’m going to read up some more on this, if nothing else it’s very interesting.

https://w2.eff.org/IP/eff_fair_use_faq.php

jupiterkansas (profile) says:

Re: Re: Re:

It helps your perspective if you consider that fair use came first.

Before there was copyright law, I could take anything I found in the world and make a copy of it. It was a natural thing to do.

Then along comes copyright law that says “you cannot copy these things without permission,” and they called it the right of the creator, but it really infringes on the rights of everyone else that naturally would copy things.

Thankfully it was recognized that giving creators such absolute powers was detrimental to society, and so their powers were restricted to say that in such and such cases, their exclusive right to make copies cannot be enforced. People may make fair use for some purposes just as they could before copyright law came along.

Anonymous Coward says:

Re: Re: Re:

lawyers et al, are nothing more than a corrupt group of individuals that seek to pervert the meanings of word and law while muddling the meanings of all things so that they may solidify the necessity of their kind.

They actively and tirelessly work to make the law unbearable so that you will require their services, to not only seek justice, but to even catch a glimpse of its immediate slaughter the moment you appear before a bench.

It is now guilty until proven innocent.

Rikuo (profile) says:

Re: Re:

” You can make fair use of the works contained therein, but only if you can gain legal access to them first. I have no duty to produce the books to you because you have no right. You can’t sue me to produce the books because you have no right.”

Correct. You are of course ignoring the fact that I can, in 99% of cases, get the text of whatever is on your bookshelf from the internet, using one method or another. I don’t need to break into your house and scan your copy of . I can simply torrent it.

antidirt (profile) says:

Re: Re: Re:

Feel free to provide a citation to a dictionary that has that definition. Feel free to link to it, if the dictionary is online.

I get this from multiple legal sources. But the obvious cite is the Restatement: “A right, as the word is used in this Restatement, is a legally enforceable claim of one person against another, that the other shall do a given act or shall not do a given act.” Restatement (First) of Property § 1 (1936).

antidirt (profile) says:

Re: Re: Re:

I must also point out that in your response, you quoted Mike’s work. You used it, without asking him for permission first. Do you have a right to use it, or would you be happy if Mike took you to court over it?

Assuming Mike’s work is copyrighted, then the default is that others cannot copy it. Mike obtained exclusive rights in it the moment he fixed it in a tangible medium. I have no right to use it. He has the right to exclude me from using it, and I have the duty not to use it. However, I did use it because my use is excused by fair use. Fair use negates my duty not to use it, and it gives me a privilege to use it instead. He can sue, but he’d lose.

Rikuo says:

Re: Re: Re: Re:

” it gives me a privilege to use it”

Here’s where your argument falls flat. Free speech is a natural right, it is not granted by the government but recognized by it. When copyright enters the picture and tries to change that to a privilege, this is the government seeking to alter what is a natural right, an inalienable right.
If copyright can restrict my speech and change it to a privilege, such that it can be decided by someone else, then there is no free speech right at all.
This is why I oppose copyright. It makes a mockery of the right to free speech.

“However, I did use it because my use is excused by fair use.”
Or in other words…because you felt and reasoned out that you have a right to take his words and use them for your own purposes. Just like what Mike is arguing here.

antidirt (profile) says:

Re: Re: Re:3 Re:

Remember that average_joe only likes the law if it fits his opinions.

That’s silly. I love the law, uber allies. Even when i disagree. But we mustn’t confuse our personal aspirations of what we want the law to be with the descriptive reality of what the law actually is. Mike is dreaming when he says fair use is not a defense. As a descriptive fact, he is demonstrably wrong. His claim to the contrary is simply unsupported by reality. That never stops him, though.

antidirt (profile) says:

Re: Re: Re:2 Re:

Here’s where your argument falls flat. Free speech is a natural right, it is not granted by the government but recognized by it.

I agree that it’s a natural “right,” but I disagree that anyone has any such “right” (in the US) above and beyond what the First Amendment guarantees. It’s based in natural law, but that natural law is constitutionalized in the First Amendment. Can you cite a single person arguing that he has a free speech “right” above and beyond what the First Amendment protects? i can’t. And I’ve looked.

When copyright enters the picture and tries to change that to a privilege, this is the government seeking to alter what is a natural right, an inalienable right.

This is silly. If the right were natural and inalienable in the sense you’re advocating, copyright laws would be unconstitutional. They are not. Free speech rights are circumscribed in numerous ways. That’s a descriptive fact.

cpt kangarooski says:

Re: Re: Re:3 Re:

I agree that it’s a natural “right,” but I disagree that anyone has any such “right” (in the US) above and beyond what the First Amendment guarantees.

That’s a bizarre way of looking at it. Even lawyers don’t usually get that legalistic.

The First Amendment is manmade, arbitrary, and quite limited in practice. There’s a large quantity of speech which exists, but courts refuse to apply it to. And what qualifies for protection has changed over the years. In fact, First Amendment jurisprudence has little to do with abstract principles of human rights, but is more about what is politically and socially acceptable at the time.

If we had been having this discussion a century ago, would you have agreed with the Court that movies were not free speech? How about obscenity? Does the right to speak freely which we possess by virtue of nature, or God, or what have you, perfectly track the Miller test? What does nature say about the circuit split as to whether or not there is a nationwide community standard for online obscenity? Or do I have greater free speech rights as a human being in California than I do in Oklahoma, because Californian human beings are materially different? Was it coincidence that Brandenburg replaced the Schenck standard at precisely the same time that God changed what the human right to free speech was when it came to incitement, or was the Warren Court possessed of unusual insight into the divine? (I lean toward the latter on that one)

No, I’d say your position is absurd.

Rather, there is a natural, human right of free speech, and it is broader than what the First Amendment protects. The First Amendment protects only a subset of this speech. Copyright is an infringement on this right. But it’s a constitutional infringement, because the Constitution isn’t based on, and isn’t obligated to accommodate the full extent of the rights with which we are possessed. Just because it limits the extent of free speech which we could engage in in a state of nature, that doesn’t mean that copyright is unconstitutional, any more than the extraordinarily fundamental right to life prevents police from shooting suspects or the state from executing criminals, all in accordance with the law.

kiwirob (profile) says:

Re: Re: Re: Re:

Antidirt you could not be further from the truth.

The exclusive rights obtained by Mike are limited in nature by U.S. Code § 107. Whilst the copyright may be said to be “exclusive” the reality is there are limitations to the rights granted to the copyright holder. As Fair Use is legally defined as “no an infringement of copyright” the exclusive rights held by the owner have no control over a 3rd party wishing to engage in any appropriate Fair Use activity.

You are attempting to grant powers to copyright holders that they never legally had in the first place.

Assuming that Mike’s work is copyrighted, then the default is that others have the right to Fair Use of his work without his permission. Mike obtained limited exclusive rights in it the moment he fixed it in a tangible medium. Mike was never granted the right to limit others Fair Use of his work. I do not need to be excused to make Fair Use of Mike’s work because Mike was never granted legal rights to limited Fair Use in the first place, Section 106 in granting exclusive rights does so subject to sections 107 through 122. Fair Use restricted the rights Mike has over his work and grants the Right of third parties to do what ever they like with Mike’s work within the parameters of U.S. Code § 107. Before Mike got his exclusive rights in Section 106 the legislation already limited the nature of those rights with the contents of Sections 107 through 122, which is a pretty big list of things!!

US Code § 106 . Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

U.S. Code § 107 – Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

RD says:

Re: Re: Re: Re:

“However, I did use it because my use is excused by fair use. Fair use negates my duty not to use it, and it gives me a privilege to use it instead.”

Well then allow me to give you a big giant “FUCK YOU” right up your fat fucking ass. Yeah, thats right, you no longer get the courtesy of civil dialogue, you contradictory, two-faced, hypocritical, shilltard, horses ass.

On behalf of anyone who has ever bothered to take the time to refute, argue, or try to explain any god damned thing to you, you may now GFY forever. “It’s ok for me, but everyone else is a dirty pirate even though the law says differently, but I’m gonna ignore that because I am a failed creator and have an axe to grind” scumbags with mentality like yours are the entire reason a site like this exists, and must exist as a bulwark against FUD, misinformation, and outright lies that threaten to remove actual freedoms people fought and died for.

Joe Random says:

Re: Re:

Sorry antidirt, but I call a right something I will fight tooth and nail for, something earned by violencing anyone and anything that stands in your way of exercising it in whatever manner you feel applies. If that happens to be legal suits or revolution I don’t care. Might makes Right, not in the manner that strength justifies any action, but in that force is the only thing that allows a right to survive against it’s enemies.

Rights aren’t about legal claims, legal claims are about rights. Law stems from the rights of the people as a collective, the rights of the people do not stem from law. Getting them backwards is the worst thing any group can do.

I don’t care if someone outlaws speech of some kind or another, I will fight for anyone’s rights to say that. I will fight for someones right to live and die in the manner they chose, with the exception that I do the moral math, not anyone else. I make my decisions on what I’ll fight for, no-one else.

Sorry if I seem overly violent, but I believe in those that fought and died for my rights, and I believe that they may soon need to be fought for again, even if that fight is in the forms of elections and propaganda from both sides.

Legal doesn’t mean right, and right doesn’t mean legal. Do the best you can in this imperfect world, whether or not you believe in some higher power, because mankind moves forward step by step, propelled by those too stubborn to realize they can’t win.

Gwiz (profile) says:

Re: Re:

A right is a legally enforceable claim against another that he should do some act or refrain from doing some act.

You are limiting yourself to the legal definition of a right. Inalienable or natural rights are not derived from laws.

We’ve had a similar discussion concerning jury nullification. You claimed that the right to jury nullification doesn’t exist because the courts have prohibited it. I argued that jury nullification is most definitely a natural right because it still exists whether it’s prohibited or not.

John Fenderson (profile) says:

Re: Re:

“A right is a legally enforceable claim against another that he should do some act or refrain from doing some act.”

A fair use right is a legally enforceable claim that the holder of the copyright in question refrain from exacting legal penalties against the person who engaged in fair use.

I fail to see how your definition changes anything.

RonKaminsky (profile) says:

Probably not a "right" in the US (but should be!)

It stinks that I have to agree with antidirt on this one, but according to the most widely used definition of “right”, fair use probably doesn’t qualify as a right in the US.

The only countries I know of where courts have ruled that some aspects of fair use are rights are Canada and Israel.

Anonymous Coward says:

Re: Probably not a "right" in the US (but should be!)

I really don’t understand — and I mean that, maybe someone can clarify — why the associated duty aspect of a right can’t apply to fair use. It’s pretty clear that the duty associated with a right can be a duty to not do something — such as the duty of others to not trespass on my land to which I hold property rights.

There’s no claim I can make against people based on my property right which then calls their duty into action, which is what Antidirt says is necessary for something to be a “right”. Rather, my rights only really come into play once they violate their duty.

Could not fair use be reframed in the same way, and should it not be (or to go a step further, has it not been already) considering how much emphasis the court has put on it as an element of the first amendment? The duty associated with the fair use right would, like the duty to not trespass, be the duty to not sue, seek injunctions, or demand payment or takedown of any work that falls under fair use.

RonKaminsky (profile) says:

Re: Re: Probably not a "right" in the US (but should be!)

The duty associated with the fair use right would, like the duty to not trespass, be the duty to not sue, seek injunctions, or demand payment or takedown of any work that falls under fair use.

The sticker in this is “that falls under fair use”. Since copyright law did not deign to explictly define what uses are “fair use”, only a court can decide that, in which case either the copyright holder is being denied “due process” since he is effectively denied the possibility of taking the actions you have listed, or the “right” of fair use has been effectively castrated.

Anonymous Coward says:

Re: Re: Re: Probably not a "right" in the US (but should be!)

Fair enough.
Let’s say that you’re out not murdering anyone, as is your right. You are perfectly within your rights to not murder anyone.
Suddenly, you find yourself in court, charged with murder. It is only at this point that your right to not murder anyone, which you had been fairly and legally asserting up to this point, transitions into the legal defense that you didn’t murder anyone.

The fact that you didn’t murder anyone is a perfectly valid legal defense against a legal charge of murder. It proves the legal claim of murder to be invalid, it proves you not guilty of murder and it means you’re free to go about your business.
At the same time of having the legal defense of “Your honor, I didn’t murder anyone” as your legal defense against a murder charge, you still retain the right to not murder anyone, and in fact continue to assert that right.

Similarly, you have the right to the fair use of copyrighted materials. You can fairly use copyrighted materials all you like. That’s the point of your fair use rights.
Suddenly, once again, you find yourself in court, this time on charge of unfair use of copyrighted materials.
Once again, the right you were asserting (and which you may continue to assert), to fairly use copyrighted materials, transitions into your legal defense.
“Your honor, I was engaging in fair use of these materials as is my right.” is your defense.
You have the right to fairly use those copyrighted materials. Your defense is valid. Your defense is valid because you have the right to use those materials. All charges are dropped, and you go back to making whatever fair use of copyrighted materials you were previously engaged in, because you still have the right to use those materials.

RonKaminsky (profile) says:

Re: Re: Re:2 Probably not a "right" in the US (but should be!)

Similarly, you have the right to the fair use of copyrighted materials. You can fairly use copyrighted materials all you like. That’s the point of your fair use rights.

How does this jive with the legality of DRM and the DMCA? Seems to me that either DRM would be illegal as violating my fair use “rights”, or fair use isn’t really a right.

Or is my fair use right the right to use the copyrighted material even if for all practical purposes it is impossible for me to do so — kind of like Eldred where indefinite extension, even if it for all practical purposes contradicts “for a limited time”, since it doesn’t literally then it’s OK?

Personally I like actual rights, not fictions thereof.

Gracey (profile) says:

Canada’s courts call it an exception, and also a right, provided the use actually is considered to be fair. What’s considered fair seems fairly restrictive, and also confusing to a lot of people.

http://www.michaelgeist.ca/2012/08/scc-on-fair-dealing/

http://www.michaelgeist.ca/2012/07/canada-now-fair-use/

https://fairduty.wordpress.com/resources/fair-dealing-compared-to-fair-use/

That One Guy (profile) says:

Re: Re:

What’s considered fair seems fairly restrictive, and also confusing to a lot of people.

As it’s meant to be, after all, if Fair Use was clear and easy to understand, more people would use it, and it would be much harder to scare shake people down with threats of ‘your use may be fair, or it may not be, but you’d better pay up just in case’.

makoto (user link) says:

what's happening now on fair use

WIPO broadcasting treaty and TPP treaty could be concluded in 2015.

The time has come for WIPO and TPP to activate the crypto engine to place locks on digital contents with scheme of encryption-decryption-reencryption over the internet in combination with rights management information like broadcast flag that was officially eliminated by FCC in August 2011 because of exceeding its authority in creating this rule.
The crypto engine is embedded in system on a chip that is already built in smartphone, tablet, smart tv, pc and more.

After Aereo, what’s happening now is that consumers are allowed to set two legal choices via cloud license server in order to linearly transform themselves into provable secondary users e.g. virtual cable operator with section 111 license, and/or provable fair users with section 107 defense to a claim of copyright infringement, meaning that consumers are allowed to provably re-transmit the free over-the-air broacast through the internet.

Hence, new copyrights ruled by WIPO and TPP will place locks on the digital contents with the objective of controlling secondary uses over the internet going forward.

for more : http://feeco-saito.jimdo.com/tpp/

jameshogg says:

I just see copyright as a sorry excuse for the all-too-often apologist mantra “I believe in freedom of speech BUT…” Or as Salman Rushdie has recently called it, the “but brigade”.

If I can’t write a 5-novel epic of Mickey Mouse full of clever metaphor critical of his “official” world then I am being censored. There’s no other way of putting it. And don’t give me that idea/expression “dichotomy” nonsense: expressions ARE ideas. As Orwell used to demonstrate, the language reveals all. Pay real attention to those words and you will see there is no difference between them. An Orwellian is and always will be hundreds of leagues ahead of a lawyer with his “intellectual” jargon. (“There are some ideas so absurd that only an intellectual could believe them.”)

Stop the above 5 novel scenario from ever being published, and you necessarily take a certain sting out of my message. “Just use a different expression” is a euphemism for “tone it down”. And a euphemism for thought crime.

“Intellectual property”… I guess to steal from said property is to commit an “intellectual crime” in that instance. Which sounds so much better than thought crime, doesn’t it?

Again, it’s all in the language.

Anonymous Coward says:

The use of Fair Use as a legal defense seems to me to have gotten things backwards.

For example, if I am accused of stealing, it is up to the accuser to prove that I have stolen.

If I am accused of breaking my neighbor’s window, it is up to the accuser to prove that I did it.

Yet, if I am accused of copyright infringement, it is up to me to prove that I did NOT infringe.

Fair use should not be considered a defense, it should be considered the default state. Copyright grants a degree of control and exclusivity to the content creator, and it should be up to them to prove that I have violated that grant, not up to me to prove that I have not.

Rekrul says:

Re: Re:

For example, if I am accused of stealing, it is up to the accuser to prove that I have stolen.

If I am accused of breaking my neighbor’s window, it is up to the accuser to prove that I did it.

Sadly, that’s not really the case. If you’re accused of breaking some law, the police will gather whatever evidence they can find, even if it’s circumstantial and if the DA feels they have enough to convince a jury, you’ll go to trial. There, if you can’t put up enough of a defense to convince the jury that you didn’t commit the crime, they’ll probably convict you.

Anonymous Coward says:

Re: Re: Re:

Realistically, I’ll concede that you’re probably right.

In theory, though, the burden of proof is on the DA and I only need to create reasonable doubt. However, copyright claims start with guilt and the burden of proof is on me to show that I didn’t infringe. That’s the point I’m trying to make: fair use should be assumed until it can be shown that I’m in violation, just like innocence should be assumed until it can be shown that I’m guilty – but that’s not how it is.

nasch (profile) says:

Re: Re:


Yet, if I am accused of copyright infringement, it is up to me to prove that I did NOT infringe.

Not quite, it’s up to both cases to present evidence, and the decision is supposed to go to wherever the preponderance of the evidence points. The plaintiff can’t just file suit and do nothing else, and win a judgment if you fail to make a good enough case.

Prashanth (profile) says:

Recent article mentioning "quirk"

I remember reading a relatively recent article mentioning how many popular works are in the public domain or have been used through fair use; that article mentioned such uses as “quirks” of copyright law. I found it sad to think that people don’t realize that the default state is actually free public access, not intellectual monopoly.

Rekrul says:

Re: Recent article mentioning "quirk"

I remember reading a relatively recent article mentioning how many popular works are in the public domain or have been used through fair use; that article mentioned such uses as “quirks” of copyright law. I found it sad to think that people don’t realize that the default state is actually free public access, not intellectual monopoly.

Several years ago, someone on the IMDb was asking about a very old movie which is now PD. I posted a link to the Internet Archive, which has a copy of the film and my message got deleted. When I mentioned this in the forum, someone told me that it was probably deleted for linking to a movie, since “Everything is owned by someone.”

Anonymous Coward says:

An entire group of comments responding to an initial comment pointing out many of the holes in the arguments made by the article’s author, and yet some fools decide once more to vote down the initial comment appearing without any further user action.

This group of comments ably demonstrates to me the abject silliness of allowing persons to “report” that which apparently harms their sensibilities…a comment that takes an article to task.

Anonymous Coward says:

Re: Re: Re:3 Re:

You stand up for trolls spamming. You think insults like chicken noises are “adult conversation” and “substance”.

You’re not qualified to make critique, or decide whether people are qualified. The best you’re going to accomplish is to get caught lying or sympathizing with spammers, then run away when you get called out for it.

Erin says:

Copyright is Private Property

Freedom of Expression does not allow you to use the property of a private party. Freedom of Expression protects you against interference by the government, not from a private party. A copyright belongs to me in the same way my car and my house belong to me. I can sell it, I can rent it out, I can leave it to my heirs. Your right to Freedom of Expression is not interfered with because I do not permit you to make speeches from my front lawn. My lawn is my private property and I have the sole and exclusive right to decide who uses it, subject to emergency situations. Similarly, your right to Freedom of Expression is not interfered with because I do not permit you to use my blog post in your speech. My blog post is my private property and I have the sole and exclusive right to decide who uses it, subject only the fair use exception, which is not a right.

Gwiz (profile) says:

Re: Copyright is Private Property

Freedom of Expression does not allow you to use the property of a private party. Freedom of Expression protects you against interference by the government, not from a private party.

Copyright can only exist by enforcement via a court of law. By it’s very nature, copyright involves a state actor (ie: the courts).

Your right to Freedom of Expression is not interfered with because I do not permit you to make speeches from my front lawn.

Not a real good analogy there. No, you have no responsibility to provide a platform for Speech. But that’s not we are talking about with Fair Use. It’s about using your works for commentary, criticism, parody, news reporting, research, teaching, library archiving and things like that.

Similarly, your right to Freedom of Expression is not interfered with because I do not permit you to use my blog post in your speech.

200 years or so of copyright case law and the Copyright Act of 1976 of disagree with you on this point. The necessity of Fair Use to keep copyright laws from running afoul of the First Amendment has been upheld in court rulings almost since the inception of copyright.

My blog post is my private property and I have the sole and exclusive right to decide who uses it, subject only the fair use exception, which is not a right.

Freedom of Speech is most definitely a right and Fair Use keeps copyright from impeding that right. How else is someone able to rebut your writings without referencing them (just like I am doing right now with your comments)?

Gwiz (profile) says:

Re: Re: Copyright is Private Property

Copyright can only exist by enforcement via a court of law. By it’s very nature, copyright involves a state actor (ie: the courts).

I might have misspoke here. The State Action Doctrine in relation to copyright can be a bit confusing and there’s not whole lot of material covering it out there.

According to this analysis, private enforcement of copyright isn’t considered a state action:

Thus, in principle, a court’s order restricting speech in a case brought by a private party could trigger First Amendment rights. But because the Supreme Court has consistently ruled that copyright and the First Amendment are not in conflict, a court order enforcing copyright cannot violate an infringer’s free speech rights—even though there is state action arguably “restricting” speech.
Source

But taken as a whole, copyright without Fair Use would be a Free Speech violation anyways because of the wording of the First Amendment: Congress shall make no law…or prohibiting the free exercise thereof; or abridging the freedom of speech…

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