[Partailly based on a work in progress called: Towards a New Approach In Fair Use: Could there be a right for fair use?, forthcoming].
Judge Nancy Gernter‘s Rejection of Joel Tenenbaum‘s fair use claim which had published a memorandum (1-07-cv-11446NG Sony v. Tenenbaum may have been ruled differently had judge Gernter had only read the holy language. In a recent Israeli court decision (OCR 11646/08 Premier League v. John Doe), Judge Michal Agmon-Gonen ruled that the streaming of soccer games through the net constitutes as fair use under the new Israeli Copyright Act and that the identity of the person operating a website providing video streaming of sporting events shall not be disclosed to the plaintiff, the Premier League (A good summary by Adv. Yoram Lichtenstein). I believe that had the court acknowledged fair use as a right, it may have ruled differently: not only that the long and unnecessary dicta been removed, but that the understanding of what’s fair and why time-shifting or space-shifting may be a good rationale for fair use anyhow.
The Premier League’s claim was that since an anonymous person was infringing on their copyright, the court must order his Internet Service Provider to reveal his identity. While the Israeli statutes have no fixed procedure on the revealing of anonymous users, the cases brought to court relied more than anything else on the Electronic Commerce Bill, a bill drafted from 2005 and brought to the Parliament Committee of Science and Technology, which contained clause 13(b) (formerly 15) stating that “had the court been pleased that there is real danger that the contents of information uploaded to a telecommunication network or the distribution on said network, constitutes as a tort against a person or infringe his intellectual property right, it is permitted, by the request of said person, to order the Internet service provider that provided access or hosting services, to disclose to that person details it may hold to identify the distributor of the data”.
Israeli courts relied heavily on that clause when considering the requests to reveal anonymous posters (DR (Tel-Aviv) 541/07 Jacob Sabo v. Yedioth Internet, RCA (Haifa) Rami Mor v. Yedioth Internet, OCR 3854/07 Walla! Communications v. The Municipality of Ariel), where some of these claims were brought also against the website hosting the data, as Israeli law does not exempt service providers from liability like clause 230 of the CDA.
Agmon-Gonen decided to refrain from disclosing the John Doe’s details to the Premier League. When rejecting their request, Agmon Gonen first described the recent academic approaches towards copyright, citing Lawrence Lessig‘s Free Culture and the Israeli Scholars Yuval Dror and Niva Elkin-Koren‘s work, Agmon-Gonen builds the case to present a new approach in Copyright when she asserts Fair Use as a Right, not a protection. “As I stated, user rights sometimes confront copyrights. Therefore, acknowledging the right to participate in the cultural life, and enjoying progress, as a constitutional right to be fulfilled under fair use, will bring an adequate balance between copyright and user rights. The fact that this is a right, and not just a defense, has practical meaning. For example, I believe that you can address the court to request declaratory relief that a specific use is authorized”.
Later, Agmon-Gonen inspects and balances between the Premier League’s copyright and the general public copyright, and checks whether streaming of sporting games constitutes as fair use. She Explains that “The new act broadened fair use and left the court with consideration to inspect whether the cases brought to him constitute as fair use. When interpreting the clause and balancing between copyrights and user rights, you should take in consideration the fact that almost every one in every day life shall be affected by this balance, and keep those persons from being hurt by a narrow interpretation of the user right, and in the centre, the right for fair use. You should take precautions not to turn a whole nation to infringers (…) as the right for fair use relates to the public, which is not copyright-literate, you must ensure that what the court asserts will suit the digital-internet reality. Some uses, which are determined as legitimate by most of the users, should be determined fair use; however, this does not mean that infringing activity performed by many knowingly as infringing, but only to what is considered legitimate”.
With this explanation, Agmon-Gonen jumped over the “Such As” test in clause 19, and went to inspect the four considerations, finally explaining that as there is almost no effect on the market value, and that sports is a national recreation which should remain the the public’s domain, streaming of sporting games constitutes as fair use.
Agmon-Gonen claims that her decision was not the first asserting fair use, she quotes a Canadian case (CCH Canadian Ltd. v. Law Society of Upper Canada,  1 S.C.R. 339, 2004 SCC 13, 48 (Can)), which asserted that “Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defense. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively”.
Defining Fair Use as a right, and not as a defence (or protection) has several implications under the definition of a right: against a right, now stands the Hohfeldian duty: To say that a user has a legal claim-right means that he is legally protected from interference by the copyright owner or against the copyright owner’s withholding of assistance with respect to the user’s activity, this is based on Wesley Newcomb Hohfeld‘s analysis of rights, as described. Against any given rights stands the duty of the person standing against it to enforce that right; as any other right, it is never absolute, but has to be balanced against other rights (HCJ 2481/93 Joseph Dayan v. Yehuda Vilk).
Unlike a defence, which could be partial or only come in order to reject a claim, a right can allow cause of action. The Israeli Supreme Court explained in Schoken (CA 4534/02 Schoken Publishing v. Eylon (Loni) Hertzekovitz) what are the defences in a slander case, explaining that the truthfulness of a statement could only be a defence in a slander case, in that case it explained: “The defences reflect a balance point between the right to a good name and the right for freedom of expression while weighing in favour of freedom of expression, when the situations listed in these clauses exist. Therefore, the defences grouped in clause 15 aren’t made of one piece.(…) different defences protect different interests. Each defences is a different balance point, and therefore each defence shall be interpreted in regards to the lying interests”. You can re-read the Schoken case and understand the court’s error: Freedom of Expression is an Hohfeldian freedom, not a right, as there is no duty to grant it: anyone can shout and say what he says, the freedom would have been transposed into a right had there been a duty to listen (HCJ 6218/93 Dr. Shlomo Cohen v. The Bar Association)
Therefore, we can say that a defense balances between a right and a freedom, while between rights there is constitutional balance. Generating a right for fair use means that when a copyright infringement suit shall be brought against a fair user, not only would the court have to balance between such rights, but that fair use, being a constitutional right, might supersede copyright, as it is now defined both as a defense (rejecting the claim) and a right (creating a new cause of action).
Judge Agmon-Gonen’s ruling might have generated a new cause of action in Israel, existing before just under declaratory judgments. When a right is granted, a person could address the courts and seek injunction against a person preventing him from practising his right.
If we read Tenenbaum through Agmon-Gonen’s decision,we might have understood that fair use may be a delicate balance between Sony’s rights and Tenenbaum’s right for fair use. The err in Tenenbaum was that fair use was seen as a defense: the rationale for fair use was not defending Tenenbaum from liability, but allowing his use as something reasonable, fair and common.