Karl 's Techdirt Comments

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• On the post: Kim Dotcom Files Brief In His Trial In The Court Of Public Opinion

  

  Karl ( profile ), 08 May, 2013 @ 08:21am

  Re:

  I really don't understand the argument. Aiding and abetting is a crime under 18 USC 2.
  
  I guess you missed this part of the article?
  

  Supporters of the DOJ will argue that there is aiding and abetting, but the rules there are quite different and, again, it doesn't look like Dotcom and crew would be guilty of such a charge.

  
  There are more details in the white paper. Here are the relevant sections, with the footnotes included in the text:
  

  The Copyright Act creates civil and criminal liability for various acts of copyright infringement, but it does not expressly give rise to liability for infringement committed by third parties. See MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005) (the Act ?does not expressly render anyone liable for infringement committed by another? (quoting Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 434 (1984)); Demetriades v. Kaufmann, 690 F. Supp. 289, 291-92 (S.D.N.Y. 1988) (?Federal copyright law, unlike patent law, does not expressly create any form of derivative, third-party liability.?). Furthermore, the U.S. Supreme Court has defined specific circumstances under which service providers may be held civilly liable (i.e., not criminally responsible) for direct copyright infringement by third parties, such as distributing ?a device with the object of promoting its use to infringe copyright.? See Id., at 919, 936-37.
  
  The fundamental legal problem with this aspect of the government?s case is that only Congress can create new criminal liability; judges cannot. Previous instances in which courts have imposed civil liability for secondary copyright infringement ? based on application of common law principles ? do not apply in criminal proceedings, as federal crimes are ?solely creatures of statute.? See Liparota v. United States, 471 U.S. 419, 424 (1985) (citing United States v. Hudson, 11 U.S. (7 Cranch) 32 (1812)). Whatever authority the courts may have had to recognize a contributory theory of copyright liability in the civil context, the courts simply have no power to impose a basis for criminal liability beyond what is expressly authorized by statute.
  
  There have been other cases in which the U.S. Supreme Court rejected attempts by prosecutors to expand criminal copyright liability. In one such case, Dowling v. United States, a California man was charged criminally for selling bootleg recordings of Elvis Presley concerts through the U.S. Postal Service. After the matter had worked its way through the court system, Supreme Court Justice Harry Blackmun succinctly stated the rule that applies equally here: ?The precision with which [Congress] has addressed the problem of copyright infringement for profit, as well as the precision with which it has chosen to apply criminal penalties in this area, demonstrates anew the wisdom of leaving it to the legislature to define crime and prescribe penalties.? Dowling v. United States, 473 U.S. 207, 228 (1985). [...]
  
  Congress has had a number of opportunities to expand criminal liability for secondary copyright infringement, but instead has moved in the opposite direction. For example, in 2004, Congress rejected a bill that would have created secondary liability under the Copyright Act. See Inducing Infringement of Copyrights Act of 2004, S. 2560, 108th Cong. (2003). Subsequently, Congress twice amended the Copyright Act?s criminal provisions, and both times it omitted any reference to vicarious or contributory liability. See Prioritizing Resources And Organization For Intellectual Property Act of 2008, Pub. L. No. 110-403, ?201(a), 122 Stat 4256 (2008); Family Entertainment And Copyright Act of 2005, Pub. L. No. 109-9, ?103(a), 119 Stat 218 (2005).
  
  It would be a radical departure to extend secondary liability into criminal proceedings when Congress has taken affirmative steps to scale back even civil liability of this sort. [...]
  
  Notwithstanding the U.S. government?s improper attempt to extend criminal liability to alleged secondary infringement, the government?s indictment also falls short because it makes no attempt to allege facts that could constitute ?double willfulness,? namely that Megaupload willfully aided and abetted a willful primary infringer. The government perhaps omitted such allegations because it was aware that Megaupload and its executives took steps to reduce potential copyright infringement by the company?s third-party users.
  
  The prosecution?s allegation of a ?Mega Conspiracy? is not enough to cure its flawed theory of criminal secondary infringement because conspiracy requires ?a specific agreement to commit a specific crime.? See United States v. Burgos, 94 F.3d 839, 860 (4th Cir. 1996). Any ?agreement? amongst the defendants could not possibly have contemplated secondary copyright infringement because, as noted, no such crime exists. Moreover, the indictment does not allege any ?agreement? between the defendants and the third-party users, nor does it assert even a single instance of direct criminal infringement by any of the users. Therefore, even if secondary infringement were a viable legal theory for criminal liability, the indictment fails to set out a viable case for conspiracy.

  
  The tl:dr; version:
  
  Secondary civil liability based on common law (a la Napster or Grokster) is not criminal liability. There is no secondary criminal liability, and Congress rejected all attempts to create it.
  
  To show "aiding and abetting," and "conspiracy," you need to show Megaupload willfully aided and abetted a willful primary infringer, and that there was a a specific agreement to commit that specific infringement. The government has not even alleged these things, much less shown them.
  
  Hope you understand now.

• On the post: The Fight Over DRM In HTML5 Should Represent The Last Stand For DRM

  

  Karl ( profile ), 08 May, 2013 @ 12:24am

  Re: Re: Re: Re: A Bit Upset With Netflix Here

  Oh, he didn't author 137 posts for Techdirt?
  
  By the way, this is a clarification: I have no idea if Zach is "an employee" of Techdirt or not. He did write articles for this site.
  
  Then again, so did I, and I did not ever get paid for writing them, nor was I ever an "employee" of Techdirt in any way. (Not that I'm complaining; I never even asked about payment, employment, or anything else.)
  
  Since Zach wrote a hell of a lot of articles, I'm simply assuming that he got paid for one or more of them, and thus was some kind of "employee." I do not, however, have any particular evidence that this hunch is correct.
  
  So, I may have been right all along. Or not. But there is at least a possibility that he got paid, so you're not a "liar" for assuming he did. (Just an ignoramus, like me.)

• On the post: The Fight Over DRM In HTML5 Should Represent The Last Stand For DRM

  

  Karl ( profile ), 08 May, 2013 @ 12:16am

  Re: Re: Re: Re: Re: Re: A Bit Upset With Netflix Here

  I define piracy to include illegal anticircumvention.
  
  And I define "an utterly despicable slimeball" to include anyone who calls someone a "pirate" who does not violate a single one of the rights granted to copyright holders in 17 USC 106.
  
  Therefore, I'm right, and you are wrong.
  
  ...Right? I mean, that's exactly the same argument that you are using.

• On the post: YouTube Once Again Building A Paywall On Which Old Media Can Hang Itself

  

  Karl ( profile ), 08 May, 2013 @ 12:12am

  Re: Re: Re:

  I have reason to believe that Youtube are offering A la carte channels.
  
  I agree, this is exactly what they are attempting to do.
  
  But all things considered, $1.99/month is still extremely high. Even leaving aside Netflix, it's far more expensive than any single channel on cable.

• On the post: The Fight Over DRM In HTML5 Should Represent The Last Stand For DRM

  

  Karl ( profile ), 07 May, 2013 @ 08:20am

  Re:

  Just keep them off Port 80.
  
  First they came for Port 6881,
  and I didn't speak out because I didn't use BitTorrent.
  
  Then they came for Port 23,
  and I didn't speak out because I didn't use Telnet.
  
  Then they came for Ports 25 and 110,
  and I didn't speak out because I didn't use SMTP or POP3.
  
  Then they came for Port 80,
  and there was no one left to speak for me.

• On the post: The Fight Over DRM In HTML5 Should Represent The Last Stand For DRM

  

  Karl ( profile ), 06 May, 2013 @ 08:31pm

  Re: Re: Re: Re: A Bit Upset With Netflix Here

  Circumventing access controls violates the DMCA.
  
  Nobody's arguing that it doesn't violate the DMCA. That doesn't mean it's piracy. If you are accessing content that you paid for and have a legal right to access, it's not "piracy," plain and simple. It may be violating the law in some way, but "piracy" it isn't.
  
  One of the major problems with the DMCA anti-circumvision provisions is that they criminalize behavior that is not an infringement of copyright.
  
  He's not doing any unauthorized copying; he's not distributing anything; he's not violating the public performance right; etc. Not a single one of the exclusive rights from 17 USC 106 are being violated.
  
  That you call this "piracy" shows how much of an utterly despicable slimeball you are.

• On the post: The Fight Over DRM In HTML5 Should Represent The Last Stand For DRM

  

  Karl ( profile ), 06 May, 2013 @ 08:21pm

  Re: Re: Re: Re: A Bit Upset With Netflix Here

  Oh, he didn't author 137 posts for Techdirt?
  
  Oops, you're right - apologies.

• On the post: The Fight Over DRM In HTML5 Should Represent The Last Stand For DRM

  

  Karl ( profile ), 06 May, 2013 @ 03:53pm

  Re: Re: A Bit Upset With Netflix Here

  Also:
  
  Oh look. A Techdirt employee
  
  E. Zachary Knight is not an employee of Techdirt.
  
  Again: liar.

• On the post: The Fight Over DRM In HTML5 Should Represent The Last Stand For DRM

  

  Karl ( profile ), 06 May, 2013 @ 03:50pm

  Re: Re: A Bit Upset With Netflix Here

  At least you're willing to admit publicly that you're a pirate.
  
  That is utter and complete bullshit. He is circumventing access controls so that he can watch content that he paid for.
  
  You have to circumvent access controls to watch Netflix on Linux, and if you do, you still cannot watch a stream from Netflix without paying for it. The only thing breaking the DMCA does, is make your Linux box behave like a Windows or OSX box. Absolutely no piracy is involved whatsoever.
  
  You've just proved that you're a liar. Congratulations!

• On the post: Fair Use Protects Some Uses, But It Is Still Way Too Weak To Be Effective For Many

  

  Karl ( profile ), 04 May, 2013 @ 12:08am

  Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

  By the way - for those reading at home, the full text of Hohfeld's essay is here:
  Some Fundamental Legal Conceptions as Applied in Judicial Reaoning
  
  Everyone should read it, so that they know how misleading AJ is being.

• On the post: Fair Use Protects Some Uses, But It Is Still Way Too Weak To Be Effective For Many

  

  Karl ( profile ), 03 May, 2013 @ 11:56pm

  Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

  Yes, courts and commentators use the words privilege and right interchangeably and carelessly.
  
  It's not "careless," it's simply the fact that words do not necessarily have the definition that Hohfeld says they do.
  
  In fact, even Hohfeld says that "rights," as commonly understood, encompass "rights (claims)," privileges, and immunities. He is not attempting to say that any of these things is not a "right" in the common sense; he is trying to categorize rights. Certainly, he never suggests that they are ranked in some way; nothing is "only" a privilege, in the same way that nothing is "only" a claim.
  
  Um, Hohfeld exactly talks about rights vs. privileges.
  
  All of what he is talking about are "rights" in the common parlance, but he uses the term "claim" as a shorthand for "right:
  

  If, as seems desirable, we should seek a synonym for the term ?right? in this limited and proper meaning, perhaps the word ?claim? would prove the best.

  
  
  And he explicitly says that "liberties" are synonymous with his definition of "privileges:"
  

  A ?liberty? considered as a legal relation (or ?right? in the loose and generic sense of that term) must mean, if it have any definite content at all, precisely the same thing as privilege. [...]
  
  The closest synonym of legal ?privilege? seems to be legal ?liberty.?

  
  So, yeah, "claim" vs. "liberty" is entirely consistent with Hohfeld. Moreover, it's a lot more consistent with the common definition of these terms... which is why you'll never use them; you're dishonest as the day is long.
  
  Incidentally, under Hohfeld's terminology, fair use would be a "no-right." It is exactly the same as my "no-right" to prevent you from entering your own property. It is not "created" by fair use, in the same way that my "no-right" to keep you from entering your property was "created" by tresspass statutes.
  
  Hohfeld would say that the First Amendment creates a right against the government, because that's exactly what the Amendment says ("Congress shall pass no law...").
  
  No, because the First Amendment does not "create" anything. Hohfeld would say that free speech is an inalienable privilege (or liberty, or freedom); and that the First Amendment guarantees an "immunity" against any governmental "power."
  
  No, common usage conflates right and privilege.
  
  If you want to restrict yourself to Hohfeld's terminology, then you can't say something is "only" a privilege. Under Hohfeld, privileges are not "subservient" to rights (nor vice versa). Hohfeld was categorizing what people call rights; he was not ranking them. So, when you say something is not a right, but "only" a privilege, you are butchering the terms by Hohfeld's standards.
  
  Of course, in common usage, "privileges" are subservient to "rights;" the former is granted to people by authorities (what Hohfeld would call "special" privileges), the latter are inalienable and not granted by the government.
  
  So, let's actually use terms that are both Hohfeldian and closer to common usage. What you're saying is that "fair use isn't a claim, it is 'only' a civil liberty." That is entirely accurate under Hohfeld's definitions, and is closer to jibing with common parlance.
  
  Of course, the natural reaction to this statement is: "What the hell do you mean, 'only' a civil liberty??? You actually are stupid enough to believe some legal claim justifies trampling all over human rights???" ...and etcetera.
  
  And this reaction is entirely justified, which is why you'll never, ever use Hohfeld's terms unless they invoke an emotional response. You are, after all, a dishonest propaganda bullshitter.

• On the post: Warner Bros., MGM, Universal Collectively Pull Nearly 2,000 Films From Netflix To Further Fragment The Online Movie Market

  

  Karl ( profile ), 02 May, 2013 @ 10:28pm

  Re: Re:

  True artists also have to buy food and pay rent.
  
  Absolutely true, and I hope more artists end up figuring out how to buy food and pay rent from their art alone. Everyone wants to see the artists that they like succeed, and I'm no different (not least because I personally know a few of those artists).
  
  But whatever they figure out, it will not involve idiotic moves like this one. How sad it is that the "true artists" have no say in this decision whatsoever.

• On the post: Warner Bros., MGM, Universal Collectively Pull Nearly 2,000 Films From Netflix To Further Fragment The Online Movie Market

  

  Karl ( profile ), 02 May, 2013 @ 10:23pm

  Re: Re: Re: Re: Re:

  Hm...smells like jealousy.
  
  Hm... smells like interference with A.J.'s business model of being an IP lawyer.

• On the post: Fair Use Protects Some Uses, But It Is Still Way Too Weak To Be Effective For Many

  

  Karl ( profile ), 02 May, 2013 @ 06:39pm

  Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

  I've explained why fair use isn't a right, and you've said nothing to disprove that. [...] There is no right to make fair use of a work, only a privilege...
  
  You haven't "explained" anything. You've insisted that nobody has a right to engage in speech that is not infringing.
  
  
  To do that, you've used definitions of "right" and "privilege" (Hohfeld's) that don't match the plain English definitions, and that judges and lawmakers don't even use all the time. Furthermore, your usage is not entirely correct. Hohfeld doesn't talk about rights vs. privileges, but about claims vs. privileges; rights can be "claim rights" or "liberty rights," and liberty rights are what are called "privileges." Moreover, he also defines "power" and "immunity" as (second-order) forms of rights.
  
  But who cares what Hohfeld thinks? Lawmakers and courts don't use his terminology. His views clash with other philosophers (like Locke) who are far more influential. Perhaps most importantly, his definitions clash with common usage: a "right" is something inalienable that others cannot interfere with, and a "privilege" is something granted by authority.
  
  But of course you know that - because you want to deliberately conflate Hohfeld's definitions with the common usage. For example, the First Amendment right to free speech would not be a "right" (claim right) under Hohfeld's definition; it would be a "privilege" (liberty right). But I doubt that Hohfeld himself would ever say that free speech is "only" a privilege, as you just did. On the other hand, this is exactly what someone would do if they were using the terms in "their non-Hohfeldian, nontechnical sense" (as you put it). Of course, that suits you just fine, because you want to use whichever definition has the most emotional appeal.

• On the post: Fair Use Protects Some Uses, But It Is Still Way Too Weak To Be Effective For Many

  

  Karl ( profile ), 02 May, 2013 @ 02:16pm

  Re: Re: Re: Re: Re: Re: Re: Re: Re:

  The fair use affirmative defense does not mean that the copyright holder never possessed the exclusive rights to begin with.
  
  Actually, that's exactly what it means.
  
  The granting of exclusive rights, in 17 USC 106, is "subject to sections 107 through 122." The limitation of rights that is fair use, from 17 USC 107, is "notwithstanding the provisions of sections 106 and 106A." If a use is fair use, then it is "is not an infringement of copyright." It is not a "limitation on liability" (as is 17 USC 512), it is a limitation of the copyright holder's rights that is a condition of being granted the rights in the first place.
  
  Saying "this use is fair use" is exactly the same as saying "this use cannot be covered by copyright."
  
  No court ever has said that the fair use defense divests a copyright owner of that which he owns.
  
  Of course they wouldn't say that. Copyright holders never held the exclusive right to the fair use of their expression. You can't divest someone of something they never had.

• On the post: Fair Use Protects Some Uses, But It Is Still Way Too Weak To Be Effective For Many

  

  Karl ( profile ), 02 May, 2013 @ 07:53am

  Re: Re: Re: Re: Re: Re: Re:

  No, the self-defense affirmative defense does in fact mean that the killing that occurred was not a murder.
  
  You know, this didn't seem right to me, but I don't really have so much legal knowledge of the legal terminology behind murder and self-defense laws. So, I decided to do some checking.
  
  And, big surprise, you are wrong. Or, at the very least, inaccurate.
  
  Though, I admit I was inaccurate too. When I said "it does not mean that a murder never occurred at all," I should have said "it does not mean that a homicide never occurred at all." That would have been true. A homicide occurred; but it was "justifiable homicide," and therefore not murder (or attempted murder, etc). See e.g. 506. Justifiable Homicide: Defending Against Harm to Person Within Home or on Property from California's criminal statutes.
  
  But it does not mean that there was no homicide in the first place. So, it is still not like a fair use defense. A successful fair use defense means that the copyright holder never held any of the 501 rights with regard to the "fair use work." It means that the prima facie case is refuted, not merely "defeated."
  
  It should also be noted that self-defense is a right, not merely a privilege, and moreover is not always an affirmative defense. For example:
  

  In this regard, the current statutory defense reflects the common-law "right" of an individual to repeal a threat to life or limb (People v. Governale, 193 N.Y. 581, 587-588, 86 N.E. 554; see also, Shorter v. People, 2 N.Y. 193). Defense of oneself or one's relations, deemed a natural, inalienable right at common law, justified the use of force, making even homicide lawful. Thus, one who committed an act of "justifiable homicide", whether in defense of himself or another, was considered to have "no kind of fault whatsoever, not even in the minutest degree" (4 Blackstone's Commentaries, at 932 [Chase's 3d ed.], see also, 69-70, 619).
  
  This right to defend oneself or another was early codified in this State as an integral part of the murder statutes (see, e.g., L.1787, ch. 22; 2 Rev.Stat. of N.Y., part IV, ch. I, tit. II, ? 3 [1829] ), and this court has long held the People have the burden of disproving beyond a reasonable doubt a defendant's claim that he was acting in the exercise of that right (see, e.g., People v. Taylor, 177 N.Y. 237, 245, 69 N.E. 534, supra; People v. Riordan, 117 N.Y. 71, 74-75, 22 N.E. 455). Accordingly, justification under the Penal Law is an ordinary defense rather than an affirmative one (see, Penal Law ? 35.00). As such, whenever justification is sufficiently interposed by the defendant, the People must prove its absence to the same degree as any element of the crime charged (People v. Reed, 40 N.Y.2d 204, 209, 386 N.Y.S.2d 371, 352 N.E.2d 558; People v. Steele, 26 N.Y.2d 526, 528, 311 N.Y.S.2d 889, 260 N.E.2d 527).

  • New York v. McManus
    
    On the other hand, courts have sometimes described copyright itself as not a right, but a privilege. For example:
    

  This contention is based on the idea that Congress has granted the copyright privilege with relation to public performances of music, and that, with reference to the protection of this particular privilege, combination is essential. We are therefore asked to conclude from the asserted necessities of their situation that Congress intended to grant this extraordinary privilege of combination. This we cannot do.

  • Watson v. Buck
    
    In fact, Triangle Publications v. Knight-Ridder describes both copyright and fair use as privileges:
    

  We think it also important to point out that we agree with the District Court's analysis and conclusion that the copyright privilege owned by TV Guide clearly applies to protect TV Guide's covers. [...]
  
  Although no definition of fair use that is workable in every case has ever evolved, a frequently quoted definition of fair use is "a privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner (by the copyright)."

  
  And, as that case makes clear, the "privilege" giving rise to the fair use doctrine, is in fact the right to free speech:
  

  The fair use doctrine frequently serves to eliminate potential conflicts between copyright and free speech.

  
  
  So, unless you really want to claim that free speech is "a mere defense," then you're full of it.

• On the post: Fair Use Protects Some Uses, But It Is Still Way Too Weak To Be Effective For Many

  

  Karl ( profile ), 01 May, 2013 @ 01:27pm

  Re: Re: Re: Re: Re:

  Also:
  
  For example, you have the right to not be shot dead by me. Say I shoot you dead. Your estate would have a wrongful death action against me. [...] I could escape liability by proving that I had the privilege to shoot you dead because I was acting in self defense.
  
  This is exactly why fair use is not a "privilege" in the same sense that a self-defense argument is a privilege. A self-defense argument means that I would escape liability. It does not mean that a murder never occurred at all.
  
  But that's exactly what a fair use defense means. A successful fair use defense doesn't mean that I "escape liability" for infringement. It means that no infringement ever occurred. It is a limitation on the copyright holder's exclusive rights, not an escape from liability for violating them.

• On the post: Fair Use Protects Some Uses, But It Is Still Way Too Weak To Be Effective For Many

  

  Karl ( profile ), 01 May, 2013 @ 01:01pm

  Re: Re: Re: Re: Re:

  Fair use is a privilege because it "immunizes conduct that, under ordinary circumstances, would subject the actor to liability."
  
  By that definition, any affirmative defense is a "privilege," since all affirmative defenses immunize conduct that would subject an actor to liability.
  
  But that is clearly not true. For example, the First Amendment has been raised as an affirmative defense (against libel mainly), but that does not mean the First Amendment is a "privilege."
  
  Without the fair use privilege, your copying would be infringement.
  
  Without fair use, your right to censor my work would infringe upon my First Amendment right to speak.
  
  And a limitation on someone else's rights is called a privilege.
  
  Well, by that definition, copyright itself is a privilege. (Not surprising, then, that it has sometimes been described as such by courts and politicians.) It is (deliberately) a limitation on everyone else's right to speech.
  
  But let's change the facts of my hypo so that the work is published. Say I write a manuscript of a book, and exactly 10 copies are made and sold publicly at Barnes & Noble. I go to B&N, buy all 10 copies, and I lock them in my safe with the original manuscript. If fair use were a right, you would be able to take me to court and to obtain a court order that I grant you access to the manuscript or a copy so that you could exercise your fair use right to copy.
  
  Your scenario still depends on your physical ownership of the copies, so it still falls flat.
  
  Let's turn this around. Say you write a manuscript of a book, and exactly 10 copies are made and sold publicly at Barnes & Noble. I go to B&N, buy all 10 copies, and I lock them in my safe. Let's also say that the manuscript was destroyed in a fire (or, perhaps, that I also bought the only manuscript - in this scenario, it doesn't matter).
  
  By your logic, if copyright were a right, you would be able to take me to court and to obtain a court order that I grant you access to a copy so that you could exercise your right to copy and distribute the work.
  
  Of course, that's not how it works, and for the same reason: you don't have any right to my physical property.

• On the post: Fair Use Protects Some Uses, But It Is Still Way Too Weak To Be Effective For Many

  

  Karl ( profile ), 01 May, 2013 @ 07:42am

  Re: Re: Re: Re: Re:

  These shills aren't simply confused, they are either dishonest or stupid or both.
  
  A.J. is not a shill, he is a reactionary. This makes him dishonest, but his dishonesty is more a form of willful blindness than anything else. And he is far from stupid.

• On the post: Fair Use Protects Some Uses, But It Is Still Way Too Weak To Be Effective For Many

  

  Karl ( profile ), 01 May, 2013 @ 06:39am

  Re: Re: Re: Re:

  Sorry, meant to give another comparison.
  
  A good example of a "privilege" is the limitations on liability that are granted in 17 USC 512, the DMCA safe harbors. Even if a service provider were liable for infringement, then by following the safe harbor rules, they escape liability.
  
  But fair use is not a limitation on liability. It is a limitation on the copyright holder's statutory rights.

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