Is fair use a right as well as a defense?

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Is fair use a right as well as a defense?

David Gerard-2
I am not a US lawyer, nor is [[Pamela Jones]] of [[Groklaw]]. But
here's some food for thought:

http://www.groklaw.net/article.php?story=20070907195435565

Despite my personal fondness for slash-and-burning fair abuse on en:wp
and taking away children's eyecandy, I remain a big fan of fair use,
because quotation is a necessary part of being able to talk about
something. [[Golan v. Gonzales]] (that's a red link. Could someone
please write the article?) is the US 10th Circuit Court of Appeals
saying it is too.

So what's Wikipedia and Wikimedia's duty to exercise that right in the
pursuit of educational value?


- d.

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Re: Is fair use a right as well as a defense?

Roger Luethi-2
On Mon, 10 Sep 2007 11:09:32 +0100, David Gerard wrote:
> because quotation is a necessary part of being able to talk about
> something. [[Golan v. Gonzales]] (that's a red link. Could someone
> please write the article?) is the US 10th Circuit Court of Appeals

There is [[Golan v. Gonzalez]].

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Re: Is fair use a right as well as a defense?

David Gerard-2
In reply to this post by David Gerard-2
On 10/09/2007, Mike Godwin <[hidden email]> wrote:

>
> David, for some reason foundation-l doesn't want to accept this
> response from my [hidden email] address.
>
> ----------------
> This is a great question, precisely because there is a big division
> among copyright theorists on what the answer is.
>
> "Copyright absolutists" like to class "fair use" as merely a defense
> against an infringement claim, because doing so makes it seem narrow
> and exceptional.
>
> Free-speech theorists prefer to class "fair use" as a right that
> derives directly from the First Amendment (or equivalent guarantees
> in other national constitutions or under international treaties).
>
> Personally, I fall into the second camp. It should be noted, however,
> that "fair use" is built into American copyright statutes as,
> technically, a "defense."  Constitutional lawyers like me tend to
> believe this doesn't really answer the philosophical question -- it's
> just a structural choice.
>
>
>
> --Mike Godwin
> General Counsel
> Wikimedia Foundation
>
>
>
>
>
>

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Re: Is fair use a right as well as a defense?

David Gerard-2
On 10/09/2007, David Gerard <[hidden email]> wrote:
> On 10/09/2007, Mike Godwin <[hidden email]> wrote:

> > This is a great question, precisely because there is a big division
> > among copyright theorists on what the answer is.
> > "Copyright absolutists" like to class "fair use" as merely a defense
> > against an infringement claim, because doing so makes it seem narrow
> > and exceptional.
> > Free-speech theorists prefer to class "fair use" as a right that
> > derives directly from the First Amendment (or equivalent guarantees
> > in other national constitutions or under international treaties).
> > Personally, I fall into the second camp. It should be noted, however,
> > that "fair use" is built into American copyright statutes as,
> > technically, a "defense."  Constitutional lawyers like me tend to
> > believe this doesn't really answer the philosophical question -- it's
> > just a structural choice.


Mmm. I was interested in the court saying "no really, it's a First
Amendment right, you idiots." I suppose the absolutists can say the
Supreme Court hasn't considered it yet, if they want to appeal
further.


- d.

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Re: Is fair use a right as well as a defense?

Mark
David Gerard wrote:
> On 10/09/2007, David Gerard <[hidden email]> wrote:
>  
> Mmm. I was interested in the court saying "no really, it's a First
> Amendment right, you idiots." I suppose the absolutists can say the
> Supreme Court hasn't considered it yet, if they want to appeal
> further.
>  

Well, as long as fair use is permitted by statute, there's really no
occasion to consider whether it's also required by the U.S. constitution
or not, since you can't really appeal a point that already went your
way. It'd only be if it *weren't* permitted by statute (or if the statue
were exceptionally narrow) that someone would have an occasion to raise
a constitutional argument.

-Mark


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Re: Is fair use a right as well as a defense?

Anthony-73
On 9/10/07, Delirium <[hidden email]> wrote:

> David Gerard wrote:
> > On 10/09/2007, David Gerard <[hidden email]> wrote:
> >
> > Mmm. I was interested in the court saying "no really, it's a First
> > Amendment right, you idiots." I suppose the absolutists can say the
> > Supreme Court hasn't considered it yet, if they want to appeal
> > further.
> >
>
> Well, as long as fair use is permitted by statute, there's really no
> occasion to consider whether it's also required by the U.S. constitution
> or not, since you can't really appeal a point that already went your
> way. It'd only be if it *weren't* permitted by statute (or if the statue
> were exceptionally narrow) that someone would have an occasion to raise
> a constitutional argument.
>
Well, fair use hasn't always been permitted by statute.  It was first
introduced by the courts.  I seem to remember the Supreme Court
discussing this during the Eldred trial, but I'm not 100% sure of this
and if so it was dicta at best.

It's nice seeing the "fair use is a right and a defense" meme finally
catching on.  It's not that it matters from a legal standpoint (though
one day it might if congress gets overly bold).  It's that it matters
from a philosophical standpoint.  Too many people have the
misconception that fair use is a copyright violation that the courts
let you get away with.  But on that point the record is clear.  The
fair use of a work is not a copyright violation in the first place.

> So what's Wikipedia and Wikimedia's duty to exercise that right in the
> pursuit of educational value?

Wikipedia and Wikimedia's duty to exercise that right is to exercise
it to the maximum degree necessary "to empower and engage people
around the world to collect and develop educational content under a
free license or in the public domain, and to disseminate it
effectively and globally."  This, in my opinion, is very little.

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Re: Is fair use a right as well as a defense?

Mark
Anthony wrote:

>> David Gerard wrote:
>>    
>> So what's Wikipedia and Wikimedia's duty to exercise that right in the
>> pursuit of educational value?
>>    
>
> Wikipedia and Wikimedia's duty to exercise that right is to exercise
> it to the maximum degree necessary "to empower and engage people
> around the world to collect and develop educational content under a
> free license or in the public domain, and to disseminate it
> effectively and globally."  This, in my opinion, is very little.
>  

I guess it depends on what you mean by "very little". Certainly classes
of fair use, or its equivalent in other countries, are pretty much
essential to our mission, like being able to quote from news reports and
works of literature or speeches.

-Mark


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