Fair Use Goes on the Offensive

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Fair Use Goes on the Offensive
http://www.law.com/jsp/article.jsp?id=3D1098217051322
Fred von Lohmann
Special to law.com
10-26-2004


Courts and law professors often praise "fair use" as the counterweight that=
=20
keeps copyright balanced with free expression. Those who actually litigate=
=20
fair use cases, however, will tell you a very different story. They will=20
tell you that, when it comes to copyright cases, it's the copyright owner=20
that has all the advantages.

Thanks to the recent federal district court ruling in Online Policy Group=20
v. Diebold, 2004 WL 2203382, 72 U.S.P.Q.2d 1200 (N.D. Cal. Sept. 30, 2004),=
=20
however, the times they may be a-changin'. Fair users on the Internet can=20
now go on the offensive to vindicate their free speech interests against=20
overzealous copyright owners.

First, a brief summary of the familiar copyright landscape. The fair use=20
doctrine, codified in =A7107 of the Copyright Act, empowers courts to give=
=20
would-be infringers a free pass when the activity in question does not=20
cause economic harm to the copyright owner (actually, the statute directs=20
courts to address a nonexclusive list of four factors, but it usually boils=
=20
down to an equitable "no harm, no foul" rule).

snip


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