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| Authored by: jvillain on Friday, May 04 2012 @ 01:59 PM EDT |
If you tic the first box then the burden is on Google to prove that it was a
permissible copying. If they tick the first box and hang on the second then
Google is guilty. Their lawyers are never going to let that fly.[ Reply to This | Parent | # ]
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| Authored by: Anonymous on Friday, May 04 2012 @ 02:32 PM EDT |
Fair use is a statutory defence - so it's definitely not equity, and you could
classify it as legal if you don't accept statute as a separate source of law.
I'm not sure how the US draws these distinctions, but practically speaking they
are not very important anyway.
Actually, that's not completely accurate, although it's treated as a defence,
it's actually a limitation on copyright (check the statute). The rights of the
copyright holder end where the fair use begins. It's not that the copyright
owner has rights that we then carve out an exception to if the use is fair, but
rather the copyright owner never did have those rights.
The reason it is treated as a defence is that if the copyright owner
demonstrates that there was copying of a protected work, they create a
presumption of infringement of their exclusive rights. Fair use requires a
rebuttal of this presumption, which is why it needs to be proved by the
defendant.
This may not be the actual interpretation used by the (US) courts, but it's
about the only way it makes sense: otherwise a copyright owner would have to
prove that a use was not fair in order to prove infringement, which in turn
would not be fair to the plaintiff.[ Reply to This | Parent | # ]
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