Talk:Kelly v. Arriba Soft Corp.

Copyright violations exempted by fair use -> fair use, not copyright infringements.

US fair use is an exception to the rights granted to a copyright holder. If a court finds that a use is fair, it is not "copyright violation exempted by fair use" but never was a copyright infringement because the use was found not to be one for which the copyright holder has exclusive rights. The distinction is significant because there are a fair number of user agreements which prohibit posting works for which you do not have sufficient rights. If a use is fair, you can post it because you (and we all) own that right but if it was an infringement being excused, some of those contracts would prohibit it.

Do not apply this reasoning to placing items in the Wikipedia. This project has other concerns beyond online fair use because it wants to create a work which can be used commercially by others as well as non-commercially. That requires more care with the content. Because the online Wikipedia is free it is significantly more likely to be fair use here than in some types of commercial work and we don't want to lay copyright traps for others - it's way to easy to create an unsolvable copyright mess.JamesDay 06:10, 14 Sep 2003 (UTC)

I think it is important to note that fair use is a defense under US law. In other words, using copyrighted works is infringement in any case. Someone may assert the fair use defense and make defeat a cause of action for infringement by a defense. This does not create any right. This is an important distinction because one cannot transfer anything more than the right one has in a work. If fair use were a right, it then, under this model of property law, it could be transfered. This is not true of fair use. It is not transferable. (Shouldn't this discussion be moved to the Wikipedia:Copyright issues pages? Alex756 08:37, 14 Sep 2003 (UTC)

This is interesting (and an area where my complete lack of formal legal education matters). What right do people have to works in the public domain? That can't be bought or sold and can only be transferred by Congress. Is it a defence to claim that a work is in the public domain when accused of infringement? (No, I'd say that this shouldn't be in Wikipedia:Copyright issues, in part because it's apparently already too large for me to edit safely. See the edit reversion I requested to it. Needs to have sections added but it's still possibly better as pointers and brief summaries of points discussed in depth elsewhere.)

It is important to remember that unlike most of property intellectual property is more of a negative right, i.e. it is not connected to actual possession (See: Pacific Film Laboratories v. Commissioner of Tax). This is why we do not regularly call it theft but infringement (be it criminal or civil). Thus one can possess a copy of any copyrighted work, and it does not deprive the copyright owner of possession of the work. They still possess it even when there is infringement. Using this analysis one could say that no one "owns" the public domain. Certainly if someone brings an infringement suit claiming copyright over a public domain work the suit will be dismissed because they do not have copyright, they do not have all the elements that constitute copyright. Clearly the name may be interpreted as meaning that all "own" such copyrights as anyone may exploit such a work. It amounts to the same thing. BTW, the ccpyright issues page states it is a draft page but it is important to remember that discussions about topics do belong on the corresponding topic talk page. If it is related to Wikipedia (and how copyright is being applied by Wikipedia volunteers) that should be in the Wikipedia space, not in the encyclopedia space (the Wikipedia space are all those pages that start [[Wikipedia:....]] this is not part of the encyclopedia. Alex756 17:04, 14 Sep 2003 (UTC)

"I think it is important to note that fair use is a defense under US law. In other words, using copyrighted works is infringement in any case." The law specifically says that "Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work...is not an infringement of copyright." Emphasis mine. anthony (see warning)

You have to prove that it is fair use, this means that the burden is upon the person claiming fair use. We commonly call this a defense, you cannot just say something is fair use and make it so; because any specific use has to be proven to be fair, i.e. someone can claim that you infringed because you copied it, you then prove fair use. This is a defense. Fair use is a defense, once it is proven then there is no infringement. I stand by my words because I know what I am talking about. This is also the reason I keep asking that everyone explain why they believe a use is fair and go through the four factor analysis, not just stamp the words FAIR USE all over something. That is meaningless precisely because fair use is a defense and there is a specific legal analysis that is applied when such an issue reaches a court for a determination under the law. — © Alex756 03:30, 18 Apr 2004 (UTC)

I guess I just misunderstood you. I thought you were saying that fair use is still infringement. It clearly is not. As for your insistance that Wikipedia users go through the four factor analysis, well, I don't see what that has to do with fair use being a defense. Some random Wikipedian who generally knows very little about the law going through a four factor analysis is just as meaningless as them stamping the words "fair use", and in any case the analysis is obsoleted as soon as the page changes. The point is to mark the image so that a reuser knows to go through the analysis for themselves. Yes, an analysis by someone who knows what they're talking about might be useful, but an analysis by Joe Schmoe isn't, and most people who know what they're talking about are unlikely to give such legal advice for free.

In any case, Wikipedia is protected by the DMCA as long as they remain online, and if they plan to publish a print edition they're going to have to get a lawyer to look at the images again anyway (possibly giving some specific guidelines rather than looking at each image, but the guidelines would need to be much more specific than the four fair use factors, and I would suspect that the candidates for fair use in a print edition would be extremely limited to the point where it wouldn't be hard to look at each and every one). I really don't see how an analysis by someone who doesn't know what they're talking about is going to help in that regard, assuming of course the information about the source is given. anthony (see warning) 04:54, 18 Apr 2004 (UTC)