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.