From: "Mr. Puneet Kishor" <[log in to unmask]>
Date: Mon, 24 Feb 2014 22:03:09 -0800

Thanks for the patient explanation Kevin. All that you say makes sense
because you are talking about contracts, and most anything is possible
with contracts. I was thrown off by the use of the word "license" in
your earlier email.

> On Feb 24, 2014, at 6:44 PM, LIBLICENSE <[log in to unmask]> wrote:
>
> 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.