On Copyfight, Jason Schulz calls out to a recent Second Circuit opinion in which the value of fair use is affirmed, even when the material itself is taken from an infringer. This is the right decision: if I want to make a critical documentary about a Star Wars movie, and the only way for me to get my clips is by downloading them from Kazaa, my reuse of the material should be fair use — even if the person who ripped the movie and put it on a P2P net is infringing.
"Fair use is not a doctrine that exists by sufferance, or that is earned by good works and clean morals; it is a right–codified in § 107 and recognized since shortly after the Statute of Anne–that is "necessary to fulfill copyright's very purpose, '[t]o promote the Progress of science and the useful arts . . . .'"
