[WikiEN-l] Re: New fair use tag proposal

Wed Jul 13 04:44:13 UTC 2005

Fastfission wrote:

>On 7/11/05, Michael Snow <wikipedia at earthlink.net> wrote:
>  
>
>>Actually, a statement by the copyright holder that the use is considered
>>fair use does serve an important purpose, and is distinct from granting
>>a license or permission to use. The statement would probably prevent the
>>copyright holder, should that particular use ever be litigated, from
>>arguing a contrary position to the court. Effectively, the party
>>claiming fair use is relieved of the obligation to prove that the use is
>>indeed fair. See [[estoppel]]. The distinction is important because mere
>>licenses can often be revoked at any time if no consideration is involved.
>>    
>>
>I find it unlikely that this would hold up in court, but I am not a
>lawyer. Fair use is such a vague thing, and specifically NOT a
>license, that a potential plaintiff could, in my mind, easily and
>plausibly say, "well, it turns out that what we then thought was fair
>we later didn't think was fair" and hardly be in bad faith.
>
It doesn't matter whether it's done in "bad faith", but a court probably 
won't allow the plaintiff to change their position like that after 
they've already told the defendant they believe it to be fair use. If 
you're not a lawyer, I'm not surprised if the concept of estoppel is 
unfamiliar and difficult to follow, but this is a situation that would 
typically call for it to be applied.

>>This is why copyright owners sometimes approach people about the way
>>copyrighted content is being used, but still offer to give permission
>>for its use. Very often they know well enough that the situation would
>>qualify as fair use anyway, but phrase it as granting permission while
>>carefully insisting that "all their rights are reserved." Openly
>>agreeing that something is fair use is very rare, and PRA's willingness
>>to do so is a generous gesture.
>>    
>>
>Saying someone can use something but you still reserve your rights is
>still a form of license, however informal. The action is granting some
>sort of right -- this is not what fair use is about, which is a
>defense/assertion of a right.
>  
>
You seem to be misunderstanding, I intended to _distinguish_ this 
hypothetical from the case of PRA's acknowledgment that Wikipedia is 
making fair use. The fact that PRA is also granting us permission is a 
separate matter. But the fact that they agree that we would have a fair 
use defense means that they can't object to that defense in litigation 
(unless our use changes).

>Whether something is
>"fair use" or not ought to be considered a factual matter
>
In legal analysis, fair use is a question of law, *not* a question of 
fact. It may call for interpretation of facts, but it is not something 
that can be determined simply by resorting to the facts.

--Michael Snow