4 ms·

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 jus

by 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 nkurz 7y ago

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.