Universal: Fair use is unfair

The coverage of the EFF v Universal case on Wired and in Universal's legal papers [pdf] has made our heads hurt.

If we're understanding this correctly, Universal's contention is that the concept of fair use - that you can use a sliver of copyrighted material under certain circumstances - doesn't apply if the material you're making fair use of is copyrighted:

Plaintiff’s exclusive reliance on the affirmative defense of fair use necessarily establishes that Universal’s statement that her use was infringing was true. For there to be a “fair use,” there first must be an infringing use. Plaintiff’s arguments that her use could be a “fair use” without infringing, or that Universal must be deemed to have impliedly represented that her use was not “fair,” are contrary to the Copyright Act and controlling case law.

In other words, because the mother said "but this is fair use", she acknowledged that she was aware the material was covered by copyright and the very act of claiming that it was used fairly means it must have been used unfairly.

It's kind of like saying that asserting you're following a right of way across private land means you're admitting you're trespassing on private land.

You have to wonder why Universal are allowing this case to grind on and on - they were heavy handed in the first place, and each new round of coverage of the case just reminds the world how heavy handed they were in the first place. If I was a Vivendi shareholder, I'd be curious as to why the company is pouring cash into a case that can only achieve a Pyrrhic victory at best.