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Fair Use Goes On The Offensive

By Fred von Lohmann
November 29, 2004

Courts and law professors often praise “fair use” as the counterweight that keeps copyright balanced with free expression. Those who actually litigate fair use cases, however, will tell you a very different story. They will tell you that, when it comes to copyright cases, it's the copyright owner that has all the advantages.

Thanks to the recent federal district court ruling in Online Policy Group v. Diebold, 2004 WL 2203382, 72 U.S.P.Q.2d 1200 (N.D. Cal. Sept. 30, 2004), however, the times they may be a-changin'. Fair users on the Internet can now go on the offensive to vindicate their free speech interests against overzealous copyright owners.

First, a brief summary of the familiar copyright landscape. The fair use doctrine, codified in '107 of the Copyright Act, empowers courts to give would-be infringers a free pass when the activity in question does not cause economic harm to the copyright owner (actually, the statute directs courts to address a nonexclusive list of four factors, but it usually boils down to an equitable “no harm, no foul” rule).

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