Reminder: Fair Use Is A Right -- And Not 'An Exception' Or 'A Defense'
from the it's-free-speech dept
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: