[License-discuss] Fair Use

[Lawrence Rosen]

After my last email, Roger Fujii wrote that "Now I am even more confused" about fair use. I'm sorry about that.

 

I wrote the following article for Linux Journal in 2002. Perhaps it will help you? At least my article refers to some court cases where legal opinions about fair use were expressed.

 

https://www.linuxjournal.com/article/6080

 

You suggest that, for helping you and Russell McOrmond, "OSI should come to a position on fair use." I can't tell OSI what to do, although one or more of their board members may respond positively to your suggestion as part of their mission to educate the public. Please note, however, that no court has ever cited OSI's opinion about anything at all as authority for a legal opinion. They cite each other, not us.

 

/Larry

 

From: License-discuss <license-discuss-bounces at lists.opensource.org> On Behalf Of Roger Fujii
Sent: Friday, August 23, 2019 4:34 PM
To: license-discuss at lists.opensource.org
Subject: Re: [License-discuss] For Public Comment: The Libre Source License

 

On 8/23/2019 1:23 PM, Lawrence Rosen wrote:

Roger Fujii wrote:
> Now I'm confused.    Are you saying there is no "fair use" when the target is software?   While one can weaken" fair use" via the license, is this a good idea for OSI to support this?

Fair use always remains a legitimate defense to copyright infringement. But it is a poor basis for claiming rights to use and distribute software for commercial purposes. There are many limits to fair use that courts will analyze after you admit to infringement. It seldom results in forgiveness.

 

/Larry

 

Now I am even more confused.   If fair use is a legitimate defense (one could call this a 'right'), then there must be /some/ modifications that one can make that would be covered by "fair use" (I know things get complicated when there is any distribution, so leave that out of the time being).   I get your point that in order to invoke "fair use" that there must be an infringement first, but I think Russell McOrmond is saying that if "fair use" would apply, then it should not even be an infringement in the first place.

Seeing as this is a chicken/egg problem, I think a good way out is for the people with licenses where this is an issue at least spell out they they think constitutes "fair use" in regards to the license or that there are no "fair use" cases, and OSI should come to a position on "fair use".

Roger Fujii

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