[EMIRELADERO]

Fair use (specifically the American variant) is a constitutional and statutory doctrine that balances the rights of the copyright holder and society's. It's decided by 4 factors, weighed "holistically" and individually. Ultimately it's up to each judge to decide whether fair use is present or not. And it applies to all possible infringments of copyrights, not just derivative works.

[CyberRabbi]

Thank you for confirming that fair use is not a right. Second, yes it absolutely concerns derivative works as it is a concept in the domain of copyright. While not every violation of copyright is a derivative work, only derivative works are justified under fair use. For instance, piracy can never be justified under fair use. The new work must be transformative to a significant degree.

This topic on the other hand has nothing to do with fair use as there is no derivative work being created. It also isn't a copyright violation, it's a violation of the DMCA. Specifically it violates the DMCA's provision that prohibits distributing tools used to violate the copyright of other work.

[EMIRELADERO]

> While not every violation of copyright is a derivative work, only derivative works are justified under fair use.

Absolutely not.

Just as an example, the Sony v. Universal case involved direct copying from the TV stream to a VHS tape. Not only that, but it saved Sony itself from the contributory infringment claim too, not just the hypothetical users from their hypothetical direct infringment.

As for the DMCA issues, they're probably unconstitutional. Because fair use is constitutionally required (as held by SCOTUS in Eldred and Golan), a law that results in the doctrine being basically impaled by proxy can not stand.

This is the same rationale the court used in the VHS case. Because a fair use was found, Sony was allowed to continue making their devices. If it was tried today, the DMCA's anti-trafficking provisions wouldn't be allowed to stand IMO, as they would conflict constitutionally with the fair use requirement and factual finding in its favor by the court.