Quote:
Originally Posted by Sil_liS
I quoted from the report made for Congress by a Legislative Attorney with the title of Fair Use on the Internet.
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Yeah, but I am, or at least was when I was younger, a trial attorney who has actually raised affirmative defenses, and defended against them. The raising of an affirmative defense is NOT subject to a judge's discretion (meaning his permission). It
is subject to his determination, but that is a different thing. That means that the judge can decide that the defense is invalid, inapplicable, or does not contain the required elements to sustain the defense.
Quote:
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Nothing is obviously fair use. Everything is on a is determined on a case-by-case basis:
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You do not understand what "case by case" means in the legal sense. You are assuming that "case by case" means "non-obvious." That is not correct. Whether a person is a male or a female is determined on a case by case basis. That does not mean that it is not obvious (most of the time).
Most fair use is obvious. The stuff that makes it into court, and comes to the attention of a judge, is a very small subset consisting of what is
not obvious.
That's why it's in court. What you are quoting assumes the existence of a dispute - that is, it is only concerned with the non-obvious situations.