[free-sklyarov] Fair use "rights"

Karsten M. Self kmself at ix.netcom.com
Sun Aug 5 17:40:57 PDT 2001

on Sun, Aug 05, 2001 at 05:15:35PM -0700, Jay Allen (sklyarov at openwire.com) wrote:
> | > Check out this bogus language kungfo:
> | >
> | > "Fair use is an affirmative defense.
> | > As such, it is a privilege, not a right."
> |
> | And that is a LIE.
> Actually, it's not.  In many forums across the internet (here, /.,
> Kuro5hin and even EFF documents), I've see fair use referred to as a
> "right" and "personal non-commercial reproduction" included under the
> fair-use umbrella.  Perhaps I'm missing something or perhaps it's just
> semantics and a bit of lazy writing, OR perhaps there is a flaw in our
> arguments.  Let me expound...

Personally, I'd like to see a comment from one of the lawyers on this.

My copy of Black's Law Dictionary defines affirmative defense as:

    A defendant's assertion raising new facts and arguments that, if
    true, will defeat the plaintiff's or government's claims even if all
    allegations in the compoaint are true; examples of affirmative
    defenses include duress and contributory negligence (in civil cases)
    and insantity and self-defense (in criminal cases).

Which I understand to mean that affirmative defense is a recourse of the
defendant, and can be used in both civil and criminal cases.

My understanding is that this means an affirmative defense cannot be
raised as an action against a copyrightholder, but only in defense to
copyright infringement actions commenced against the party claiming fair

Which doesn't address the question of whether or not a suit could be
raised against a rightsholder in the name of fair use.  My reading of
the law is that it cannot:

   [T]he fair use of a copyrighted work...is not an infringement of

...implying fair use must be made, an infringement claim raised, and the
fair use exemption invoked.

One change to this situation is that previous to DMCA, copyright law
itself was not directly effective in proscribing fair use.  Under DMCA,
the attempt itself involves other actions, deemed illegal.  One possible
avenue, should 1201(b) prohibitions be upheld, would be for fair use
complaints against copyrightholders.

> It seems to be a common misconception that we in the U.S. have a right
> to make backups 

17 USC 117.

> or do other things which facilitate personal use and that providers of
> materials must allow for that.  US Code, Title 17, Section 107
> (http://www4.law.cornell.edu/uscode/17/107.html) deals with the
> fair-use limitation of exclusive [author's] rights:
>     The fair use of a copyrighted work, including such use by
>     reproduction in copies or phonorecords or by any other means
>     specified by that section, for purposes such as criticism,
>     comment, news reporting, teaching (including multiple copies
>     for classroom use), scholarship, or research, is not an
>     infringement of copyright.
> First, you'll notice that it says nothing about personal backups,
> which are actually detailed in Section 1008 (which was introduced with
> the Audio Home Recording act of 1992, see
> http://www4.law.cornell.edu/uscode/17/1008.html):

>     Prohibition on certain infringement actions 
>     No action may be brought under this title alleging infringement of
>     copyright based on the manufacture, importation, or distribution
>     of a digital audio recording device, a digital audio recording
>     medium, an analog recording device, or an analog recording medium,
>     or based on the noncommercial use by a consumer of such a device
>     or medium for making digital musical recordings or analog musical
>     recordings.
> The second thing you may notice about this is that it does not confer
> upon the consumer any right, but instead a protection from any action
> (prosecution) under this statute.  

More pointedly, it doesn't state that this isn't an infringement, or
even that it's not a crime.  Merely that it's not actionable.

> Producers of copyrighted works are never under any obligation to allow
> you to sample, backup, copy, etc their work (as they are, by the way,
> in Russia), however, the law allows you to do so without fear of
> prosecution.  It's a fine point, I know, but it seems that there are
> no such things as fair use _rights_ or personal use _rights_.  Uses
> such as these are simply protected under a safe harbor provision.
> Now that's just about copying a work. If the work is encrypted for
> purposes of copyright protection, then the DMCA kicks in.  The DMCA,
> of course, makes it illegal to circumvent encryption algorithms or
> other copyright protection measures, further limiting personal use and
> fair use...  All in all it's an erosion of consumer freedom with goods
> which they have purchased. Quite legal (as far as the DMCA is
> concerned) but it has a deleterious effect on the consumer freedom.
> Why is this important?  Well, it's probably not, BUT it certainly
> reflects on the communities knowledge of the law.  When fighting with
> lawmakers and lawyers, we need to avoid sounding like a bunch of
> reactionaries who only have half of the information.
> Your thoughts on the above would be greatly appreciated...

Important and significant.  What the ultimate outcomes are remains to be

Karsten M. Self <kmself at ix.netcom.com>            http://kmself.home.netcom.com/
 What part of "Gestalt" don't you understand?               There is no K5 cabal
  http://gestalt-system.sourceforge.net/                 http://www.kuro5hin.org
   Free Dmitry!! Boycott Adobe!! Repeal the DMCA!!   http://www.freesklyarov.org
Geek for Hire                          http://kmself.home.netcom.com/resume.html
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