On 8/23/2019 1:23 PM, Lawrence Rosen wrote:
Roger Fujii wrote:
> Now I'm confused. Are you saying there is no "fair use" when the
target is software? While one can weaken" fair use" via the license,
is this a good idea for OSI to support this?
Fair use always remains a legitimate defense to copyright
infringement. But it is a poor basis for claiming rights to use and
distribute software for commercial purposes. There are many limits to
fair use that courts will analyze after you admit to infringement. It
seldom results in forgiveness.
/Larry
Now I am even more confused. If fair use is a legitimate defense (one
could call this a 'right'), then there must be /some/ modifications that
one can make that would be covered by "fair use" (I know things get
complicated when there is any distribution, so leave that out of the
time being). I get your point that in order to invoke "fair use" that
there must be an infringement first, but I think Russell McOrmond is
saying that if "fair use" would apply, then it should not even be an
infringement in the first place.
Seeing as this is a chicken/egg problem, I think a good way out is for
the people with licenses where this is an issue at least spell out they
they think constitutes "fair use" in regards to the license or that
there are no "fair use" cases, and OSI should come to a position on
"fair use".
Roger Fujii
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