The Misuse of Fair Use
You guys, the recent shutdown of scans_daily has precipitated yet another flurry of misuses of the concept of fair use. Now, believe it or not, I actually *do* have stuff to do other than post about this stuff, but I just wanted to make a brief foray into the misunderstandings again, in hopes that this might help *someone* out there understand how
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Thanks for commenting. I had a longer reply but my computer crashed, so quick response to some of your points:
>>Any discussion of (non-criminal) copyright infringement is essentially hypothetical since in the absence of an action at law by a private party, the law has nothing to say about it.
That would be why I said, “IF it meets the criteria according to the judge of my case, then my use was fair.”
I.e. if the case was taken to court, then you’d use fair use to defend against the claim of copyright infringement. My point is that fair use is not a guaranteed right that can be relied upon by potential infringers. It’s not like the exclusive rights of copyright holders. It is instead a sometimes hard-to-define defense (since different circuits tend to give the factors different weights).
>>It is perfectly reasonable to claim that you *do* have the right to a great deal of unauthorized use
Sure, you can say anything in the world that you want to when it comes to infringing. But I am talking about what would happen if you look at it under the law, not what an infringing party says or thinks to him or herself.
>>That does not in any way erode their use as a protection from liability
I did not mean to imply that fair use being an affirmative defense erodes its efficacy as a potential protection from liability. And if it’s preferable, one could refer to fair use as a limitation on copyright, as the Copyright Office has in fact done. But the fact remains that fair use comes into play in court as a defense that must be raised by the person accused of infringing.
For some reason I am having trouble with my Adobe Reader (computer problems again) so I can’t read the case you linked with a pdf. Sorry!
Yes, scans_daily had many non-infringing uses, as I mentioned in my post. On the other hand, do you seriously think that posting an entire, copyright protected issue of a Marvel comic, with minimal commentary, is a clear example of fair use? There were, in fact, whole issues scanned there, whether they were from the earlier years of the community or not. Obviously I can’t go over there now and quantify what part of the community appeared to be fair use, since it’s gone now.
Also, I understand the “capable of non-infringing uses” idea, of course, but really, that defense could be used for the entirety of the internet. It’s capable of non-infringing use, but would you suggest that there would never be an infringing use found on an internet site because of Betamax? Here I am talking about posts. I wasn't looking at the community as a whole when discussing the fair use aspect.
The site was rife with copyright-protected works, and the owners of those works, if they chose to pursue legal action, may well have prevailed in having those works removed. Am I saying LJ was right to shut down the whole site? No, I’m really not. But I would say that there were many posts on there that were infringing or would not have stood up to a fair use analysis.
Moreover, I’m not even suggesting this would ever actually end up in court. So no, I’m not suggesting that a federal district court would order the takedown of the whole of scans_daily. I never did suggest that.
In summary, if you re-read what I posted about scans_daily, in discussing the community I am referring to individual posts that would or would not have stood up to a claim of copyright infringement, and stating that the community was able to exist because companies chose not to pursue their copyright claims. I doubt you’d disagree with the idea that if every company who had a copyrighted work displayed on the community pursued their legal rights and prevailed, there would be little left of the community itself. Not to mention that if they did pursue their rights, LJ and/or the mods would scrap the whole thing anyway (like LJ did here) because of the money involved in trying to defend such uses. So what I was saying is that the community existed because the companies chose not to bother with it. Once they did, *poof* there it went. Is that good? No, I don't necessarily think so, as I stated in two previous posts. But that's the way it often happens.
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