Re: [dvd-discuss]Lexmark Decision

["Peter D. Junger" <junger(at)samsara.law.cwru.edu>]

Ole Craig writes:

: 	Do we in fact have a right to "fair use"? I believe I was
: corrected on that very point at some time on this list, perhaps by
: someone who does not have to pepper his/her posts with "NAL"
: disclaimers...
: 
: 	AIUI at that time, "fair use" is only a defense to an
: accusation of infringement. In a DMCA case infringement is not reached
: (because of the statutory prohibition on circumvention) so all the
: pers^Wprosecu^Wplaintiff has to prove is that the defendant
: circumvented. Since "fair use" is NOT a defense for circumvention, it
: cannot be raised.
: 
: 	If the above is correct, it would appear to me that "fair use"
: as commonly used within the context of copyright law, is NOT a
: "right". Therefore, we don't have a statutory right to "fair use"
: except as one might read into the spirit of the copyright law itself.
: This of course is completely Bad, Wrong, and Fucked from the non-legal
: viewpoint, but that fact doesn't seem to have been a barrier to the
: copyright industry so far, now has it?

The problem is that the term ``right'' is remarkably ambiguous.  It
is true that the courts developed the doctrine---it is not statutory
in its origin---that ``fair use'' was a defense to an infringement
claim.  And this means that one has a ``privilege'' to make fair
use of copyrighted works. A privilege that was later enacted in
in the Copyright Act.  It also has been strongly suggested, at least,
by the Supreme Court that the Copyright Act does not abridge the
privilege of Free Speech included in the First Amendment because
it allows fair use as a defense.

This strongly suggests that the DMCA is susceptible to constitutional
challenge unless the courts read in a fair use defense.

And if you read what the Second Circuit Court of Appeals says
the law is in the Corley case, it would seem that the application
of the DMCA will in many cases be unconstitutional, although
that Court then misapplied the law that it had just declared to 
the particular facts in front of it. 

To return to the original question, I would suggest that the ``right''
of free speech is nothing more than a defense to the application of
laws forbidding one from speaking freely.  So, in that sense, if
``fair use'' is not a right, then neither is free speech.

I would add that to some lawyers the issue simply is whether one
has to plead fair use as an ``affirmative defense'' in an infringement
suit.  That is, however, just a procedural matter and is certainly not
what non-lawyers (and most non-trial-lawyers) are talking about when
they discuss whether fair use is a right.

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
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