4 ms·

Ive never understood fair use to be a right. Fair use is a weakening of right holders rights, a defense that can be used to get a case dismissed, despite copyr

by basch 7y ago

Ive never understood fair use to be a right. Fair use is a weakening of right holders rights, a defense that can be used to get a case dismissed, despite copyright infringement having technically occurred.

derefr 7y ago
Correct: fair use is a defense. Like "self-defense" or "coercion" are defenses in assault cases.
- otakucode 7y ago
  Fair Use is specifically an affirmative defense. Not a defense like self-defense at all. It's not a matter of 'yes I did a bad, but I had a good reason', but 'it is my right to do this, I did nothing wrong'. The other references to Lenz v Universal in this thread established this and it's been upheld in many courts.
  - basch 7y ago
    Self defense is an affirmative defense. The affirm part is you conceding you committed the crime, and then you argue it was justified. Lenz didnt confirm it was an affirmative defense, they ruled the way they did despite admitting it was an affirmative defense, one that can only procedurally arise after you've been accused of a crime.
Marsymars 7y ago
I don't know about American fair use, but Canadian fair dealing is explicitly a user's rights. From wiki: > According to the Supreme Court of Canada, it is more than a simple defence; it is an integral part of the Copyright Act of Canada, providing balance between the rights of owners and users.
nkurz 7y ago
This was a traditional understanding, but the decision in Lenz is largely based on the conclusion that "fair use" is explicitly an "authorized use", and not just a defense of infringement. Universal made the essentially argument you are making, and the court soundly rejected it: "We agree with the district court and hold that the statute unambiguously contemplates fair use as a use authorized by the law. Fair use is not just excused by the law, it is wholly authorized by the law." In defense of this (among other arguments) they cite portions of the US code that explicitly refer to fair use as a "right": "See also 17 U.S.C. § 108(f)(4) (“Nothing in this section in any way affects the right of fair use as provided by section 107 . . . .”" https://cases.justia.com/federal/appellate-courts/ca9/13-16106/13-16106-2015-09-14.pdf https://cases.justia.com/federal/appellate-courts/ca9/13-161... So while your understanding of fair use as merely a defense against infringement may be widely held, and arguably is even the historically accurate position, it doesn't reflect the way that the courts currently interpret the statutes.
- basch 7y ago
  Thanks. I hadnt read Lenz and understood it more to be saying its not ok to make bad faith claims you know you will lose. Now I agree with your interpretation to an extent, however its only the 9th circuit court. Lenz is also odd in that the person claiming fair use is the plaintiff, and the suit itself is that a DMCA claim was frivolous. The video was restored after her counter-notification, and her lawsuit was later. A DMCA taketdown request is itself not a lawsuit. So my interpretation of the ruling is not that "you cant sue someone" but that you "cant blast out DMCA notices." I read it as an anti-intimidation ruling. It is clear, that it sees fair use as authorized by law, but it also still categorizes fair use as an affirmative defense. Ergo, fair use gives you a defacto right to not be harassed.

by basch 7y ago

derefr 7y ago

Correct: fair use is a defense. Like "self-defense" or "coercion" are defenses in assault cases.

otakucode 7y ago
Fair Use is specifically an affirmative defense. Not a defense like self-defense at all. It's not a matter of 'yes I did a bad, but I had a good reason', but 'it is my right to do this, I did nothing wrong'. The other references to Lenz v Universal in this thread established this and it's been upheld in many courts.
- basch 7y ago
  Self defense is an affirmative defense. The affirm part is you conceding you committed the crime, and then you argue it was justified. Lenz didnt confirm it was an affirmative defense, they ruled the way they did despite admitting it was an affirmative defense, one that can only procedurally arise after you've been accused of a crime.

Marsymars 7y ago

I don't know about American fair use, but Canadian fair dealing is explicitly a user's rights. From wiki: > According to the Supreme Court of Canada, it is more than a simple defence; it is an integral part of the Copyright Act of Canada, providing balance between the rights of owners and users.

nkurz 7y ago

This was a traditional understanding, but the decision in Lenz is largely based on the conclusion that "fair use" is explicitly an "authorized use", and not just a defense of infringement. Universal made the essentially argument you are making, and the court soundly rejected it: "We agree with the district court and hold that the statute unambiguously contemplates fair use as a use authorized by the law. Fair use is not just excused by the law, it is wholly authorized by the law." In defense of this (among other arguments) they cite portions of the US code that explicitly refer to fair use as a "right": "See also 17 U.S.C. § 108(f)(4) (“Nothing in this section in any way affects the right of fair use as provided by section 107 . . . .”" https://cases.justia.com/federal/appellate-courts/ca9/13-16106/13-16106-2015-09-14.pdf https://cases.justia.com/federal/appellate-courts/ca9/13-161... So while your understanding of fair use as merely a defense against infringement may be widely held, and arguably is even the historically accurate position, it doesn't reflect the way that the courts currently interpret the statutes.

basch 7y ago
Thanks. I hadnt read Lenz and understood it more to be saying its not ok to make bad faith claims you know you will lose. Now I agree with your interpretation to an extent, however its only the 9th circuit court. Lenz is also odd in that the person claiming fair use is the plaintiff, and the suit itself is that a DMCA claim was frivolous. The video was restored after her counter-notification, and her lawsuit was later. A DMCA taketdown request is itself not a lawsuit. So my interpretation of the ruling is not that "you cant sue someone" but that you "cant blast out DMCA notices." I read it as an anti-intimidation ruling. It is clear, that it sees fair use as authorized by law, but it also still categorizes fair use as an affirmative defense. Ergo, fair use gives you a defacto right to not be harassed.