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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I think I need to give you a more detailed explanation of what an affirmative defense is, & what "discretion" means in the law.
First of all, when judges have "discretion" they have the freedom to make certain kinds of decisions one way one day, and another way another day. A good example is whether to allow the testimony of expert witnesses. You can sue someone concerning the value of a piece of property, and offer an expert to testify about how to figure out what that value is. The judge has discretion to allow the testimony or not, depending on whether he thinks he needs any help on that. And he can decide he needs it in one case, but not in another.
The important thing to know about "discretion" is that ordinarily, a judge's discretion cannot be successfully challenged on appeal. It's up to the judge whether he wants to hear an expert witness.
An "affirmative defense" is, broadly speaking, an excuse. Say you are sued for allowing your dog to bite Joe. The plaintiff has to prove (1) you own a dog and (2) that dog bit Joe. You don't have to say a word - the other side has to prove that. But you might want to offer an excuse: "Joe provoked my dog." That's an affirmative defense. If you don't raise that defense, the other side doesn't have to worry about it, and will win the case. But if you do raise that excuse, and if it is true, then you are off the hook, even though your dog actually bit Joe. That's why it's called "affirmative" - you have to specifically raise the excuse or you can't complain later that they didn't prove your dog wasn't provoked.
Now here's the thing: the judge does not have the "discretion" to say he's not going to allow you to make the excuse that your dog was provoked. He can't decide to allow the excuse to be used when Mary gets sued for her dog biting someone, but to not allow you to give that excuse when it's your dog involved. He
can decide that "provocation" is not a legally valid excuse that can't be used by anyone. But that's not "discretion."
So when we talk about "fair use" being an affirmative defense, what it means is that (1) the defendant has to tell the judge that even though he used the copyrighted material, he has the excuse that it was "fair use," and (2) once the defendant raises that defense, the judge can't say he's not going to permit the excuse to be raised. What he
can decide, of course, is whether the excuse has been proved, but that's not a question of "discretion".