If A Tree Falls in the Woods: Fair Dealing vs. Fair Use

[deriksmith]

Doing six rounds on copyright, I keep running into the concepts of fair use and fair dealing.

The United States (and Israel) have fair use, the rest of the world has fair dealing. The two concepts are legally distinct, but for practical purposes tend to be considered more-or-less equivalent, with a caveat that fair dealing may allow for ’slightly less’ than fair use does.

I think I’ve figured out the difference. And as usual… it’s all the Mormons’ fault.
Order of Operations

Fair use is an inherent right of an individual. Fair dealing is a right that occurs in the individual’s relation to another party. Stemming from that, they have a different order of operations in determining whether a use was ‘fair’ or should be punished.
fair use fair dealing

1. Offense
2. Violation
3. Judgment
4. Consequence

1. Violation
2. Offense
3. Judgment
4. Consequence

Under fair use, the very first question asked is “was offense given” to the party whose property was being used? If there was not, then no crime has occurred, regardless of what the legal status of the act itself.

Under fair dealing, the very first question asked is “was the law violated?” Since fair use and fair dealing both deal with the re-use of another’s intellectual property, the answer to this question will always be “yes, a violation has occoured.” You then move on to whether or not offense was given, to which the answer is “no,” but that’s still not the end… because while a no-offense argument is part of fair dealing… the assertion that no offense was given (to excuse the violation) is untested until a judge declares that your excuse was good enough that ye be not guilty.

In practical terms, fair use has an unproven assertion of no-offense-given, and fair dealing also has an unproven assertion of no-offense-given. So is there an actual difference?

Yes. Under fair dealing, you have committed a crime in the eyes of the law for you have not yet been charged, but you hold, were it to come to judgment, would result in your exoneration due to circumstances.

Under fair use, no crime has occurred. Under fair dealing a crime occurs even if you’re in the right.
Put very simply, under fair use, if a tree falls in the woods and nobody hear it, it does not make a sound. Unless offense is given, no violation of the law occurs.
A State of Legal Grace

When you get down to it, it’s kinda wacky that the otherwise aggressively legally positivist American system has fair use. We litigate everything- why do we have some sort of right to violate the letter of a law without a crime taking place? You can’t blame it on tradition… England uses fair dealing!

So who did settle America? Puritans. Dirty Calvinists.

A cornerstone of most Calvanists faiths (such as the Mormons, more properly called the LDS Church) is the principle of Unconditional Election; the idea that some people were inherently bound for heaven, and other for hell. (Since you didn’t know who was who, this was arguably little different from the more popular ‘damned by your actions’ doctrine.) Those who were Elect were going to heaven and would not be weighted down by sin no matter what their actions were in life; they existed in a state of perpetual divine grace by the will of God.

So America was founded by wacky religious folks (I say that affectionately, I grew up in a Dutch Reform town) who believed in teflon souls to which sin would not cling, no matter their actions. And we ended up with this crazy practiced-nowhere-else-in-the-world idea of fair use, which is essentially “a state of legal grace” wherein no crime occurs in spite of the letter of the law being violated.

The legal doctrine of fair use is the natural outgrowth of Calvinist religious doctrine.

(I still prefer it to fair dealing.)