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.