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Thread: Fair Use is not a mere affirmative defense, but a right like copyright. 9th Cir.

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    Fair Use is not a mere affirmative defense, but a right like copyright. 9th Cir.

    But just as important is the basis of that conclusion: again today we have a federal court making it clear that fair use is not just a carve-out of the copyright system but a right on the same level of those described in the rest of the statute.

    https://www.eff.org/document/9th-circuit-opinion-lenz

    [A]nyone who . . . makes a fair use of the work is not an infringer of the copyright with respect to such use. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 433 (1984). ... Given that 17 U.S.C. 107 expressly authorizes fair use, labeling it as an affirmative defense that excuses conduct is a misnomer[.]
    https://www.eff.org/deeplinks/2015/0...-circuit-rules
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    Same thing as a photo of your one year old in the tub at bath time is not kiddie porn...contrary to what some super wound up too uptight Walgreen's Photo Counter dipstick thinks.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    I believe that the instant court case is the 'Dancing Baby'.
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    Quote Originally Posted by Nightmare View Post
    I believe that the instant court case is the 'Dancing Baby'.
    https://www.eff.org/press/releases/i...g-baby-lawsuit
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    It is good to see the courts so explicitly recognizing fair use.

    The whole area of intellectual property is interesting to me. I make my living generating IP. I believe a strong case can be made that our nation's IP protection laws, created pursuant to explicit constitutional authority, are one critical reason we have so much scientific, artistic, and other advancement in our nation.

    And yet, I wonder about IP from a natural rights theory point of view. How does natural rights deal with IP?

    In any event, the constitutional language is clear and important:

    Art 1, Sec 8 "Congress shall have power ....To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

    And note the Fair Use language in statute, 17 USC 107:

    "Notwithstanding the provisions of sections 106 and 106A, 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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include - (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

    Charles
    Last edited by utbagpiper; 09-16-2015 at 08:53 PM. Reason: Correct typo: IP proportion to "IP protection"
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    In a brief search I found no other use of the phrase intellectual property proportion. I found proportion used in the same sentence a few times.
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