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Originally Posted by Harmon
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".
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I don't think that the lawyer lied in his report to Congress. I think that he meant something else. The full paragraph that I quoted from was:
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Fair use is an affirmative defense to a claim of copyright infringement. It is a privilege, not a right. More specifically, it is “an equitable rule of reason, which permits courts to avoid rigid application of the copyright statute when, on occasion, it would” undermine the purpose of copyright. “The primary objective of copyright is not to reward the labor of authors, but ‘to promote the Progress of Science and useful Arts.’ . . . To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.” Courts apply the four fair use factors with this over arching purpose in mind.
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Copyright is the right of the author to make copies and allow others to make copies of their work. Fair use isn't the right to make copies, but the privilege of not being fined or sent to jail for it.
The problem is that people don't understand this concept and think of it in terms of "it's not copyright infringement, it's fair use", or in the example that you gave it would be like saying "you provoked my dog so he didn't bite you".