From: Kevin Smith <[log in to unmask]>
Date: Tue, 25 Feb 2014 01:13:10 +0000

Hi Puneet,

I will try to explain what I mean, with the caveat that I know of no
cases on this point, so it is just my opinion, for whatever that is
worth.

Fair use is an exception to the exclusive rights in copyright, a
situation where someone exercises a right held by the copyright owner,
without authorization, but the law says that the particular
unauthorized exercise of a right is not infringement.  Whether we view
this as an affirmative defense or a positive right, it is possible to
sign it away by contract.  We are able to surrender most of our rights
through contracts, as when we limit our right to free speech by
signing a non-disclosure agreement, which many people do with their
employers.

If we (whoever we are) have surrendered our fair use right/defense by
contract, a plaintiff claiming infringement would raise that contract
to stop us, as defendants, from claiming fair use.  I am guessing that
a court would allow that, but courts have a lot of discretion and a
particular judge might permit fair use to be argued anyway.  Or she
might not.  Interesting question, if a judge allowed the fair use
argument in spite of an agreement, would the plaintiff then have a
breach if contract claim?

I am not sure how explicit the contract would have to be, but I think
the language would likely say something like "the uses allowed under
this agreement are the only uses that licensee is allowed to make of
the licensed content."  Just enumerating authorized uses does not, in
my mind, eliminate fair use.  And that is the important point; fair
use is available unless it is explicitly surrendered; if a licensee is
not sure if he has signed away fair use, he probably hasn't.

Kevin L. Smith, J.D.
Director of Scholarly Communication
Duke University Libraries
P.O. Box 90193
Durham, NC 27708


> On Feb 24, 2014, at 19:51, "LIBLICENSE" <[log in to unmask]> wrote:
>
> From: "Mr. Puneet Kishor" <[log in to unmask]>
> Date: Sun, 23 Feb 2014 16:17:24 -0800
>
>> On Feb 23, 2014, at 3:56 PM, LIBLICENSE <[log in to unmask]> wrote:
>>
>> My opinion is that a license can restrict fair use, but it must be
>> quite explicit to do so.  The mere existence of a license does not
>> trump fair use, but it's specific wording might.
>
> Perhaps a very naive question, but could you elaborate on that Kevin.
> If fair use lies outside the reach of copyright, and if a license can
> only apply to the rights given by copyright, how can a license
> restrict fair use? Could you give an example of this explicitness you
> speak of that might place such a restriction?
>
> Puneet.