A proposal for a new kind of "fair use"

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If it is truley fair use then there is no license

A license is permission to engage in a protected right of a copyright holder- most notably to copy or create derivative works.

Fair Use on the other hand, the full name of the section of copyright law where it is codified is "107. Limitations on exclusive rights: Fair use", is a limitation on the copyright holder's exclusive rights allowing others to copy portions of their work, and in some cases the entire work (The Sony BetaMax case ruled that recording entire shows - Time Shifting was fair use, in the RIO case the court opinioned that copying entire songs onto the RIO was most likely fair use -Space Shifting however they also ruled that such fell under the AHRA exemptions for digital recordings, In the 2LiveCrew case the court allowed the entire lyrics of Pretty Woman be used as a Parody, Thumbnails of photos were declared fair use in the Arriba Soft case, and there are other cases) , without a license (permission).

Fair Use is often called an Affirmative Defense to copyright infringement, versus a limitation on the copyright holder's rights, even though copyright law clearly labels it as a limitation. This is because the US Supreme Court in the 2LiveCrew Case (Campbell v. Acuff-Rose Music, Inc.) described it as such. What this means is that in order for a defendant to prevail on Fair Use they bear the burden of proving the use falls under Fair Use instead of the plaintiff proving the alleged infringement meets prima facie case of infringement . This means the defendant can not use other defenses such as De-Minimums copying, Scenes-A-Faire,What was copied is not copyrightable (See the Lexmark case appeal - the court ruled DRM is not an artistic expression and hence itself does not enjoy copyright protection), Independent Creation (Through Lack of access to the copyrighted work- the Chinese wall of reverse engineering where one group develops a description- the specification, from the software and passes the description to a second programmer who then writes the code- the second programmer had no access to the copyrighted work. Also many programs fall under this ) or Merger.

Calling Fair Use an affirmative defense instead of a limitation or right of the consumer is pure semantics though. The term "affirmative defense" is a litigation term reflecting the timing in which the defense is raised. It does not not characterize the substance of the defendant's actions. The First Amendment, for example, is often used as an affirmative defense and is clearly a right. Section 107 of the US copyright act defines Fair Use as a limitation on the copyright holder's rights and clearly states such is not an infringement.

This becomes very important in the DRM debate as those whom are pro-DRM like to say that Fair Use, which DRM by design prevents, is not a limitation on the copyright holder's rights and is infringement.

Posted by: Edward Meyers   Posted on: 04/06/07 You are currently: a Guest | Members login | Terms of Use

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