Kevin Smith (Duke University) has written a post exploring what it means to recognize fair use as a “postitive right” as opposed to an “affirmative defense.” Inspired by the language used in one of the amicus briefs filed in the Authors Guild, Inc. v. Hathi Trust case, Smith concludes:
If we understand fair use as a positive right that creates a boundary limiting the control of rights holders, we ought to be less afraid of exercising it. After all, we do not fear to walk on a public sidewalk just because some landowner might scream “trespass;” we recognize that rights over land have boundaries and do not shirk from exercising our positive right to use public land. The argument in this amicus brief points us to a similar confidence when exercising our fair use right.