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In the Gospel episode of the Passion Friday we meditate on our salvation as realized in Jesus Christ. Retrospectively, we are to pass on to the OT readings to see how all those facts were foreseen in them. We have two OT readings on Passion Friday celebration in Chaldeo-Indian or Mar Toma Nasrani Church: Is 52:13-53:12 and Dan 9:20-27. The reading from Isaiah brings to our mind the prophecy of the Suffering Servant and that from Daniel is on the fullness of time, the seventy weeks. Both of them are direct indications or prophecies on the Messiah.
We know that there are four "Songs on the Servant of the Lord" in Isaiah. Although we are concerned only with the last and really the longest, it is to be understood in the context of all of them. According to A.Penna, Isaiah "is renowned for its exalted notions of the holiness and omnipotence of God and his intervention into the world of human experience, as well as for its insistence on 'faith' for the individual and for society. But there is one theme that merits special attention; that which makes Isaiah loved by all Christian readers, that which makes his work as it were an anticipation of the gospel itself. No other prophetical writing contains such a wealth of messianic prophecy."
The songs portray the ideal Servant of the Lord, the perfect Israelite, whose consecration to the divine will, even in the midst of overwhelming suffering, is remarkable. The specialty of the "Servant Songs" consists above all in presenting an aspect of the Messiah which is not brought out elsewhere, i. e., his sufferings and the value attributed to his vicarious suffering and death.
The Servant is chosen by the Lord to accomplish a particular mission, i. e., to establish justice and peace (Is 53:5) on earth, not only for Israel but also for the gentiles. He accomplishes his task with perfect humility and gentleness; still he meets with neglect, opposition, contempt and persecution. In the final Song, however, i. e., in our present liturgical reading, the atmosphere changes dramatically and unexpectedly: here "the result of the Servant's sufferings is not failure but success, and success not in spite of, but precisely through his sufferings." He takes upon himself not only the sorrows and grief of the people, but also their transgressions and iniquities, and suffers punishment on their account (Is 53: 4-5).
Here there is an excellent solution to the problem of suffering which had always troubled Israel. The experience of the prophets especially that of Jeremiah might have been an insight for the author to arrive at this solution. Jeremiah suffered undeservedly (Jer 15:10-11) in accomplishing his task of interceding with God on behalf of the nation; the sons of Abraham, who were supposed to be a source of blessing to the world (Gen 12:3; 22:18), found themselves condemned to shameful exile. The OT history tells us that such sufferers often break out into lamentation, and sometimes even to curses. But here the scene is quite different. Although he suffered more than all others (Is 52:14), he did not even open his mouth (Is 53: 7). In spite of his seemingly total failure, he grows under the complacent eye of God (Is 53: 1-3).
The originality of this Servant Song, is perhaps, seen in Is 53:4-6. It takes for granted the sin-suffering relationship explained in the book of Job. Although the idea of sin and suffering is vividly presented here, the emphasis is on the diversity of persons it affects: the Servant suffers intensely, but it is to expiate the sins of others; his suffering brings health and salvation to sinners. In short, through his extreme pain and disfigurement he accomplishes his task on behalf of the mankind. "Suffering therefore, is not necessarily to be seen as a sign of the sinfulness of the sufferer; it can be the burden of the sin of others, and the suffering itself be not a punishment but an atonement."
As for the Servant, his suffering culminates in a contemptuous death (Is 53:8-9). But everything that happened was to fulfil the divine plan: his death is a sacrifice of expiation for sinners and the beginning of an unprecedented glorification for himself (Is 53:10-12). According to A.Penna, it is hard to see the precise idea of resurrection in v. 10; but there is certainly the idea of success after death; v. 11 could yield the doctrine of resurrection.
In short, this reading from Isaiah on Passion Friday, brings to our mind a detailed picture of one suffering unto death for others and for their sins. He is essentially that priest-redeemer who intercedes for sinners. A reflection on these passages was an important element in the early Church's understanding of the role of our Lord, and of his death as a vicarious expiation. Several NT writers in explaining the human salvation accomplished in Jesus Christ consider this passage in Isaiah as a relevant messianic prophecy.
Coming to the reading from Dan 9: 20-27, the prophecy deals with the fullness of time. There are two different lines of interpretation to this prophecy: historical and messianic. According to M.McNamara, the scholars prefer today the historical interpretation rather than the messianic interpretation. He also gives several reasons for that. The Christian writers from the second century onwards have always considered that Dan 9: 25-27 refers directly to the coming and death of Jesus Christ and to the abolition of the Levitical sacrifice by his death on the cross.
Even according to the historical interpretation, v. 24 is directly messianic and speaks of the age that follows the destruction of the persecutor. In reference to Ch. 2 and 7 of Daniel, it shows us an aspect of the new kingdom to be introduced by God and to be inaugurated by Jesus Christ and to be perfected at the Parousia.
The Seventy Weeks of years correspond to seven seventy-year period of 490 years (cf Lev 25: 8,the Jubilee Year). This period is divided into three unequal sections, namely, seven plus sixty-two plus one, and the last section, i. e., one week, is again subdivided into two equal parts (Dan 9: 25-27). The beginning and end of each section is marked by some special event. V. 24 being the essence of this prophecy, it speaks of the removal of three things offensive to God: transgression, sin and iniquity. These are the classical terms used in OT to show sins against the Lord. These seventy weeks of years are allowed for a complete destruction of these negative elements. And when transgression will be definitely checked, sins will be sealed up and iniquity will be atoned, the corresponding positive elements or virtues will be established. They are: (i) the bringing in of everlasting righteousness, i. e., a state of friendship between God and man, in which God's supreme rights and man's obligations deriving there from will be recognized; (ii) the sealing of vision and prophet, i. e., the visions and prophecies of Dan 7-9 or of Jer 25: 11; 29: 9 will be authenticated or shown true, in their fulfilment; and (iii) the anointing of Qdosh qudshin, the Holy of Holies, i. e., the sanctuary or the altar or even the temple.
Whatever be the chronological or historical factuality of these positive elements, a meditative reader of this prophecy in his liturgical celebration is naturally brought into the 'fifth kingdom', the new kingdom of God, inaugurated by the death and Resurrection of Jesus Christ. It is the messianic kingdom, introduced by God without human help (Dan 2: 34.44s). Perhaps the author of Daniel might have imbibed the spirit of such prophets as Jeremiah and Ezekiel, who, distressed by the behaviour of the reigning kings, concentrated their attention on a new reign of Yahweh. According to Daniel, this new kingdom is heavenly in origin, supernatural, universal and everlasting in character. And when all the prophecies were realized, i. e., in the fullness of time, the kingdom was introduced by a personal Messiah, calling himself the 'Son of Man' (Dan 7:13), who besides being the 'Son of David', was also the 'Son of God.’ He took away the sin of the world (Jn 1: 29) and made expiation for its iniquity by his death on the cross. He also began the reign of righteousness through his grace and he is the new temple in his body (Jn 2:21). Thus v. 24 in this prophecy is directly messianic and eschatological, while vv. 25-27 are so in a typological and symbolical manner.
It is in the liturgical reading of the Epistle that we come to the real Apostolic experience of the mystery of Christ. There we have the historical and personal experience of the Christ-event in the Apostolic Church or the early Church. The Apostles were by no means armchair theologians, immersed in abstract ideas and ideals. Each of them had personal and communal experience of the Risen Lord and the direct commission to transmit his own experience. By the force of this experience and commission, they were determined to do whatever possible to share this experience. And the only thing that they had to share with others was the mystery of Christ's death and Resurrection; and their one aim was to help others to participate in this mystery by faith and sacraments, especially baptism and the Eucharist.
"In Paul's understanding Christian conduct is a direct response to the death and resurrection of Christ, in which the Christian is enabled to participate through baptism (Rom 6:5-14; Col 2:12)." Paul's experience of the risen Lord on his way to Damascus (Acts 9:1-19; 22:3-21; 26:4-23) was the central reference point for the whole of his subsequent life and thought. His experience was a direct communication from God (Gal 1:16); it was an experience equal to that of the other Apostles after Resurrection (1 Cor 15:8). Thus he establishes the authenticity of his 'apostolate' and of 'his gospel.’ Then he goes on to explain what exactly this mystery of salvation accomplished in Jesus Christ is. It is the mystery of Christ, who suffered, died and rose up bestowing the Spirit of everlasting life to those who have faith (Gal 3:14).
'Christian justification', according to St. Paul, is also a participation in a basic quality of God. 'Justice' primarily is the quality of God (Rom 3:5.21.22.25.26), but it is a quality which is often communicated to men (Phil 3: 9; 2 Cor 5: 21). Thus it is God's "salvific uprightness, a quality by which he manifests his bounty and fidelity in acquitting and vindicating his people.” Just as it is in the case of Christian life, it is received by faith in Jesus Christ (Rom 3: 26). Hence naturally one grows in his uprightness or shares more and more in God's economy of salvation, as his faith grows. By quoting Hab 2: 4 in Gal 3:11 Paul wants to relate 'life' and 'justice' with 'faith', and that too according to his own special way of understanding it. According to Habakuk, Judah will become victorious through his fidelity to the Lord. The 'life' and 'justification' promised to him was temporal deliverance from the Chaldean invaders. But here in Galatians Paul extends the sense to Christian destiny and salvation. It is a life in Jesus Christ and a justification through his life-giving spirit, namely it is a permanent state of existence which continues even after man's physical death. Paul argues that in the present economy it is possible only by faith and not by observance of the Law (Gal 3: 11). Paul's argument runs in such a way as to, "emphasize the fact that even if the law did give life and justice, this was only typologically and in relation to Christ, the fulfilment of the law. Once the antitype and reality has arrived, there is no longer room for the type and the shadow."
He continues to argue that the law with its manifold prescriptions enslaved man (Gal 5:1), and from this enslavement man has been liberated by Christ (Gal 3:13). As the Lord through his covenant purchased his people in OT times (Ex 19:5-6; Is 43:21; Ps 74: 3), so Christ too by his covenant blood, shed on the cross, bought his people. Thus the new people of God is emancipated from the curse of the law (Gal 3:13) and through faith in Christ they have become the free ones (Gal 5:1).
In short, through the Passion Friday reading from Gal 2:17-3:14,the Fathers of The East Syriac Churches wanted to give the worshiping community an occasion for meditating upon their salvation accomplished in the passion, death and Resurrection of the Lord. Moreover, in the imitation of the Apostle (St. Paul), they are induced to think of their own conversion and faith in Jesus Christ. Their new life in Jesus Christ being a total transformation from the past, they have to convince themselves that a return to the life of sin is not becoming to the Christian life. It is through the covenant blood of the Lord that they are introduced into this new life in Jesus Christ and hence they have to be faithful to this new covenant and new life even to the shedding of their own blood.
On the Friday of the Passion, the Chaldeo-Indians have an elaborate reading from the Gospels. The whole passion narrative is read in the liturgy on this day. This tradition prefers a mixed reading, namely, the system of Gospel-harmony. Thus they read Lk 22:63-23:12; Mt 27:19; Lk 23:13-23; Mt 27:24-25; Lk 23:24-45; Mt 27:51-54; Jn 19:23-42 during the liturgical celebration for this day. The principal text is from St. Luke. Relevant passages from St. Matthew and St. John are added to it.
The emphasis in today's liturgy is on the passion and death of Jesus Christ, the Son of God. In a liturgical celebration, what is important is the accomplishment of human salvation, or more precisely, the participation in the already accomplished salvation. Hence the passion and death of Jesus are seen as events in the history of salvation. Their historical and chronological order or even their factuality is of little importance here. The presentation itself must be sufficiently evocative to deepen the consciousness of sinfulness and of the helplessness to get out of it. Then only will the community realize the great value of redemption and will spontaneously break out singing praise and thanksgiving. The same ideal is also found in the Passion Friday celebration. Hence the Syriac Fathers, who have composed this liturgical celebration, strove to present the real accomplishment of Jesus' passion and death to the celebrating community in the most touching manner possible.
According to K. H. Schelkle, "Luke is especially concerned to present those elements in the passion of Jesus which are appealing and moving." Christ, for St. Luke, is the man of grace, patience and suffering. He is the martyr par excellence. He sees beforehand his suffering and death. He is sorrowful as he celebrates the last supper with his disciples (Lk 22:15-16). Although he prays the Father to remove the most bitter cup, he submits "himself fully to the will of the Father (Lk 22:42). In the Garden of Olives his sweat falls to the ground as heavy as drops of blood (Lk 22:44). Even at the most difficult moment he stands revealed as Saviour by healing the ear of high priest's servant (Lk 22:51). His gaze was powerful enough to move Peter to repentance (Lk 22:61-62). It is against such background that the community is introduced to the Gospel of the day.
In the Gospel itself, St. Luke brings out vividly the personality of Jesus in his extreme 'human' qualities. He is more concerned with others in sorrow than himself. He, therefore, turns and consoles the weeping women (Lk 23:27-31). On the cross he thinks of his enemies and prays for them (Lk 23:34). His heart throbs with the feelings of sympathy and he forgives the penitent thief at once (Lk 23:43). In short, he shows himself a man of extreme patience and of great devotion to God till the last moment of his life (Lk 23:46). It is Luke who provides a basis for that feeling - that experience of compassion with the Lord in his passion - which is to move Christendom in the future. An example is given immediately after the crucifixion: "And all the multitude who assembled to see the sight, when they saw what had taken place, returned home beating their breasts" (Lk 23:48). The centurion shows his extreme sympathy in his exclamation, "Certainly this man was innocent!" (Lk 23:47).
St. Luke is at great pains in today's reading to show that Jesus was the real Messiah. Every minute detail in the passion narrative and crucifixion is to fulfil the messianic prophecies. Jesus being challenged as to his messiah-ship, defends himself in clear terms that he is the 'Son of Man' (Lk 22:67-70). He is the 'Son of Man' whom Luke had already portrayed as the 'suffering one' and as the one in whom the prophecies are to be fulfilled (Lk 9:22.44; 18:31). Again, after the resurrection, this triumphant suffering will be attributed to the glory of the Messiah (Lk 24:26.46). The quotation from Ps 110:1 in Lk 22:69, i. e., sitting 'at the right hand', according to A. R. C. Leaney, is also messianic. St. Lukehad already used it with the same meaning (Lk 20:42). Moreover this passage is used in several other NT passages to show Christ's Messiah-ship. The titles 'Son of God' and the 'Power of God' used in this context refer also to Ps 2:7 and Dan 1:13. The episode of Pilate's wife (Mt 27:19), inserted to the liturgical passion narrative by the Syriac Fathers, also seems to stress the divinity of Jesus. In support of this we read in St. John (19:7-11) that Pilate was afraid to hear that Jesus is the Son of God.
As we enter upon the 'way of the cross' and go up to the crucifixion itself, the evangelists try their best to establish the fact that Jesus is truly the Messiah. Every event in it is a fulfilment of messianic prophecy. Thus in the episode of the daughters of Jerusalem and in Jesus' exhortation to them, St. Lukesees the accomplishment of Hos 10:8; Jer 11:16; Ez 20:47 and Pr 11:31. Not only that the prophecies are fulfilled in him, but he himself turns out to be a prophet. He prophesies the destruction of Jerusalem and the distress to be endured by the children of Jerusalem. That Jesus was crucified in between two criminals is again to fulfil the prophecy of Isaiah that 'he was numbered with the transgressors' (Is 53:12 ).
Leaving aside many other OT references in each of the events which followed, let us come to the words of our Lord from the cross. His prayer for his crucifiers (Lk 23:34) is something unique and unheard of in the history of religions. Here, there is, perhaps, the true picture of Christian religion. His exalted moral instruction in Mt 5:38-42, is being literally put into practice in his own life.
In the episode of the penitent thief (Lk 23:41-43), we meet with Jesus in his extreme human qualities. His sympathy knows no bounds. Not only does he forgive him at once, but promise him the greatest honour of accompanying him in the heavenly gardens.
The great "signs" (Lk 23:41-43 and Mt 27:51-53) connected with the death of the Lord, namely, the unusual and extraordinary darkness for three hours, the splitting of the temple veil, the earthquake and so on, all of them show clearly the uniqueness of Jesus' death as the Messiah. "The conjunction of the celestial signs with the beginning of the destruction of the temple emphasizes with perfect clarity Luke's eschatological conception: this destruction of Jerusalem begins those catastrophic events which inaugurate the kingdom.” St. Luke is linking the fate of Jerusalem with celestial signs. In the Lord’s death these events are set in motion.
This episode doesn’t appear to have any relation to the symbol of ‘sanctuary veil’ or ‘ikonostasis’ in Eastern Churches. The ‘Sanctuary Veil’ is an important symbol in all Syriac Churches. It is for them the Person of Jesus Christ himself (Heb 10:20). Only through Him and in Him do the humans have any contact with the Divine. It is the supreme symbol which provides a heavenly experience to the liturgical assembly and hence an unavoidable reality in Syriac tradition’s liturgical celebrations.
In the adoration and confession of the centurion, i. e., "Truly this was the Son of God!" (Mt 27:54), Jesus stands out as a true prophet. His prophecy in St. John's Gospel, namely, "and I, when I am lifted up from the earth, will draw all men to myself" (Jn 12:32), is fulfilled now. He was then speaking of the magnetic power of his cross, and the centurion, perhaps, is the second fruit of it (the first being the penitent thief).
In the concluding part of the Passion Friday Gospel, i. e., in Jn 19:23-42, we meet with very many symbolic events. All of them are specially arranged to show that Jesus was the true Messiah and that in his death and Resurrection, human salvation is achieved. St. Johnclearly distinguishes between the two sets of Jesus' vestments: the clothes and the seamless tunic. According to R. E. Brown the particular reference to the kottina, the seamless tunic, which is not rent, is to show the priesthood of our Lord. He proves it clearly bringing in the NT and OT parallels to this text and references to the seamless, ankle-length tunic. Thus St. Johnestablishes that Jesus went to the cross both as a priest and as a king.
One of the Passion Friday ceremonies in the Mar Toma Nasrani Church is reminiscent of this biblical theme. On this day, the Cross erected on the Bema, the raised platform in the middle of all churches, symbolizing the earthly Jerusalem and the Gagulta in this tradition, is specially adorned with kottina', the long tunic. The celebrants lead the ‘Liturgy of the Word’ from the Bema. When the Gospel proclamation is over, the Archdeacon who is the principal assistant of the celebrant, brings the cross with great veneration to the main celebrant, who removes the tunic from the cross and covers it with a neat white shroud. Then it is carried in procession together with the Gospel Lectionary to the sanctuary, where it is laid solemnly on the altar, which is the symbol of our Lord's sepulchre.
There are also certain Fathers of the Church, for example St. Cyprian, and some other scholars who see the undivided tunic as the symbol of the unity of Jesus and his followers or as a symbol of the unity of the Church. Whatever be the plausibility of such readings, the idea that kottina', the long tunic, is the typical garment of a salvific figure seems to be convincing.
The episode of Mary and the Beloved Disciple (Jn 19:25-27) points to a basic theme in Mariology and in the life of the Church. According to Mar Aprem, just as Moses appointed Joshua in his stead to take care of the people of God in OT, so Jesus appointed St. John, the Beloved Disciple, to take care of Mary, the Church. Thus, Mary at the foot of the cross is for him the figure of the Church. This may be a development on the understanding of Mary as New Eve by Justin, Irenaeus and Tertullian. While speaking about Mary and her relation to the Church, the Second Vatican Council too teaches that she is the type of the Church in the order of faith, charity and perfect union with Christ (LG 63).
St. John is very careful to describe two important events before the death of our Lord. They are Jesus' cry of thirst and the mention of hyssop to support the sponge (Jn 19:28-30). According to R. E. Brown, they have definite theological symbolism behind. They are to be understood, says he, in the whole Johannine train of thought. The Pshitta reading of Jn 19:28 clearly shows that Jesus' cry of thirst is to fulfil a prophecy. The very introductory statement - "Jesus, knowing that all was now finished" - is evocative of Jn 13:1 which says that "Jesus knew that his hour had come to depart out of this world to the Father.” Hence Jesus' cry of thirst and the tasting of wine are to be related to the finishing of the great work of 'the hour' - to his death which is the final act of the work committed to him by the Father as is clear from Jn 3:16: "For God so loved the world that he gave (to death) his only Son." St. John describes these events in such a way as to leave an impression that Jesus was to die only by fulfilling the Scripture that had predicted his death. The Scripture involved may be the prophecies on the suffering Messiah in OT as understood by the early Christian community. If we look for some particular texts, they can be Ps 69:21: "They gave me poison for food, and for my thirst they gave me vinegar to drink"; Ps 22:15: "My tongue cleaves to the roof of my mouth, thou doest lay me in the dust of death"; Ps 31:10: "For my life is spent with sorrow, and my years with sighing; my strength fails because of my misery, and my bones waste away"; Ps 42:2: "My soul thirsts for God, for the living God. When shall I come and behold the face of God"; Ps 63:1: "My soul thirsts for thee"; there are also people who relate Jn 19:28 to Zech 14:8, and find its fulfilment in Jn 19:30 as he handed over the Spirit. The act that finishes (telein) his work brings the Scripture to complete fulfilment (teleioun), because both his work and the plan of Scripture come from his Father.
Jesus' cry of thirst is understood both as his desire to go to the Father to assure the salvation of mankind and as an expression of Johannine irony, namely, that Jesus who is the source of living water (Jn 7:37-38), cries out in thirst - he thus signifies that he must die before the living water can be given, and we are to see that water immediately pours forth from his pierced side (Jn 19:34). This event may be best understood in relation to Jn 18:11: "Shall I not drink the cup which the Father has given me?" It is the cup of suffering and death; and now after having finished his work, he thirsts to drink it to the last drop, i. e., to taste the bitter wine of death; for, only then the will of his Father will be fulfilled.
Another important theological symbol, perhaps, is that of the hyssop. In Ex 12:22 Moses specifies the use of hyssop to sprinkle the blood of the Passover lamb on the doorposts of Israelites. The author of the Epistle to the Hebrews, while describing Jesus' death to ratify the new covenant, does not forget to mention the use of hyssop by Moses to ratify the old covenant (Heb 9:18-20). The symbolism of the Paschal lamb is something particular to St. John. For him, Jesus is "the lamb of God, who takes away the sin of the world" (Jn 1:29); Jesus was sentenced to death at the very hour when the slaughter of paschal lambs began in the temple precincts (Jn 19:14); and again the prophecy, "not a bone of him shall be broken" (Jn 19:36), he relates to the paschal lamb (Ex 12:46). He is the innocent one, the Suffering Servant, who suffers even death for others. He was brought to the slaughter like a lamb (Is 53:7); but God did not allow his bones to be broken and thus deprive him of the victory of resurrection. Thus in the context of Johannine thought, the mention of hyssop may well be symbolically evocative of Jesus dying as the paschal lamb of the new covenant. In Egypt, the blood of the paschal lamb sprinkled by means of hyssop saved Israelites from the Destroying Angel, and here the blood of Jesus, the Lamb of God, saved the whole world from sin and destruction. Here, of course, St. Johnadopts the symbol according to his own imagination, and let us not forget that it is difficult to apply rigorous logic to symbolism.
There are several opinions with regard to the last words of Jesus in different gospel traditions. The words in St. John, "Ha' mshallam, Telelestai, Behold, it is finished!" (Jn 19:30), is very close to St. Luke's, "Father, into thy hands I commit my spirit" (Lk 23:46; Ps 31:6). Some scholars contrast these to the words in Matthew and Mark:"My God, my God, why hast thou forsaken me?" (Ml 27:46; Mk 15:34), and say that in John(and also in Luke), Jesus accepts death willingly and deliberately; because it is the completion of God's plan. Death for Johannine Christ is not merely a scene of suffering, of ignominy and of universal desolation, but it is the beginning of a great triumph. Thus Jesus' cry, "Behold, it is finished" is a victory cry replacing the feeling of apparent defeat in Matthew and Mark. There are also differences of opinion with regard to this interpretation. When we consider it as a victory cry, it heralds the victory of obediently fulfilling the Father's will. It is parallel to the "It is done" (Rev 16:17) heard out of the temple, the throne of God, when the seventh angel had poured out the final bowl of God's anger. What God has decreed has been accomplished.
The phrase, "and gave up his Spirit" (Jn 19:30) suggests, according to R. E. Brown, another theological theme. It seems that here Jesus is handing over the Holy Spirit to those at the foot of the cross, especially, to Mary who symbolizes the Church or the new people of God, and to the Beloved Disciple who symbolizes the Christian. St. Johnhad already in 7:39 affirmed that those who believed in Jesus were to receive the Spirit, once Jesus had been glorified. Hence it is quite fitting that there is a reference to the giving of the Spirit at this climactic moment. If this passage can be so interpreted, we are inclined to say that it is a proleptic symbolic reference to the ultimate purpose for which Jesus has been lifted up on the Cross. Let us not forget here that the actual giving of the Spirit, according to St. John, comes only in 20:22 after Jesus’ Resurrection.
The piercing of the side of Jesus, the flow of blood and water, and the emphasis on the authority of an eye-witness, and so on, as explained in Jn 19:31-37 is something unique in gospel traditions. According to St. Johnall these things happened in order to fulfil the Scriptures (Jn 19:36). Hence we may conclude that there are definite theological symbolisms for all these events in Johannine thought. Leaving aside the discussions and disputations with regard to the factual and historical nature of these events, we consider here only the liturgical and theological implications. According to R. E. Brown, the purpose of the Evangelist in narrating the issue of blood and water, is to deepen the existing Christian faith (Jn 19:35). The reference to the testimony as 'true' is to indicate that the real significance of this event lies not on the visible, material level, but in the spiritual. As we have every reason to identify this eye-witness of v. 35 with the Beloved Disciple in vv. 26-27, here too he stands as the symbol of all Christians sure to receive further revelations.
It seems that St Johnsees here the fulfilment of Jesus' prophecy: "The hour has come for the Son of Man to be glorified" (Jn 12:23). But at the 'hour' of his glorification he has to fulfil another promise, already made in Jn 7:38-39: "Out of his belly shall flow rivers of living water.” The Evangelist immediately adds that the water here, refers to the Spirit to be received by those who believe in Jesus. The insistence on the eye-witness is to show that this promise of our Lord is really fulfilled. Thus the flowing of water from Jesus' side, for John, is another proleptic symbol of the giving of the Spirit, and the Spirit is given in order to confirm all Christians in faith (Jn 19:35: "that you also may believe").
The mentioning of blood in this event may become clearer, if we consider 1 Jn 5:6-8: "This is he who came by water and blood, Jesus Christ, not with the water only but with the water and the blood. And the Spirit is the witness, because the Spirit is the truth. There are three witnesses, the Spirit, the water, and the blood; and these three agree."
The contrast here is between Jesus' baptism in the Jordan by John the Baptist and the crucifixion. Baptism by the Baptist was with water alone and it did not convey the Spirit (Jn 1:31); the real "begetting by water and Spirit" (Jn 3:5) was something that would not come until Jesus had been glorified (Jn 7:39); and the Spirit would not be able to come until Jesus had died or shed his blood (Jn 16:7). In the diction of the Epistle, the water had to be mingled with Jesus' blood before the Spirit could give testimony. The thrust of the soldier’s lance proved that Jesus is truly dead. And from the dead one there flows living water, the Spirit, who is the principle of life for all those who believe in Jesus in imitation of the Beloved Disciple. Thus the event has an ecclesial dimension too as St. Paul affirms: "and all were made to drink of one Spirit" (1 Cor 12:13). Again the symbolism is proleptic as in Jn 19:30, and serves to clarify that, while only the Risen Lord gives the Spirit, that gift flows from the whole process of glorification in the 'hour' of the passion, death, resurrection and ascension.
For some biblical theologians, the reference to blood in this episode is to emphasize the theme that Jesus died as a sacrificial victim. According to them, the lance's thrust and the flow of blood were to fulfil the strict requirements of Jewish sacrificial law which says that the blood of the victim should flow forth at the moment of death and the priest should slit the heart of the victim and make the blood come forth. Jesus dying as a sacrificial victim, as mentioned earlier, is not a theme foreign to Johannine thought patterns.
We must also consider seriously the secondary theological significance of this passage. According to a variant interpretation, beginning from the second century, this passage has a sacramental symbolism too. The flow of blood and water from the side of Jesus symbolizes thus the two sacraments of baptism and Eucharist, very closely related to the death and resurrection of our Lord. We must say that such an explanation is not foreign to St. John's theological thinking.
The quotation from Zech 12:10: "They shall look on him whom they have pierced", in Jn 19:37, when considered against the background of the Gospel's emphasis on realized eschatology, stands as a verdict or judgment. According to R. E. Brown, we may count two groups of people who look at the pierced one. The first group includes the Jews, his enemies. They are totally defeated by the very act they instigated; they wanted to do away with Jesus by all means; as they were eagerly looking at him to see that he is truly dead, there flows forth a stream of living water together with his life-blood. The Pharisees wanted to kill Jesus, because the whole world was running after him (Jn 12:19); but ironically, they were fulfilling Jesus' prophecy in Jn 12:32, that when he is lifted up, he will draw all men to himself. They were the material cause for his suffering and death which led to his glorification and to the pouring out of the Spirit who will vindicate Jesus against themselves (Jn 16:8-11). The Beloved Disciple represents the second group. They are those who have faith in Him. They, having received the gift of life, look to him to be confirmed in faith and to have eternal life (Jn 3:14-15). "Thus the dead Jesus remains the focal point of judgment even as did the living Jesus: at the foot of the cross there stand those who reject the light as well as those who are attracted to it (Jn 3:18-21). The former look upon the pierced Jesus to be condemned; the latter look upon him to be saved."
In this connection, we cannot but meditate on the fact that we proclaim this incident of piercing the side of Jesus (Jn 19:34-35) in our Holy Qurbana during the mixing together of wine and water in the chalice as part of preparing the holy gifts. From the above-mentioned early interpretations of this episode it becomes clear that the Church is creatively infusing the Holy Spirit to the Eucharistic Gifts so that the Eucharistic action becomes really a pneumatic action. In the Qurbana of the Mar Toma Nasrani Church and all East Syriac Churches the wine is the symbol of our Lord’s humanity and the water that of the Holy Spirit.
In the burial rite of our Lord (Jn 19:38-42), we are drawn to two minor theological symbolisms. The first one is a continuation of the theme proposed by Jn 12:32, namely, once Jesus has been lifted up, he draws all men to himself. Here the emphasis seems to be on a particular group of people, represented by Joseph of Arimathea and Nicodemus. Both of them were honourable people in the Jewish society. They had great respect for Jesus; but they were afraid to become disciples and followers openly. But now, as Jesus has been lifted up, and the life giving Spirit has been poured out they take courage and come out to confess their faith in Jesus Christ. Perhaps, St. John had in mind the crypto believers in the synagogues of his own time, and wanted to encourage them with the example of Joseph and Nicodemus.
The second possible symbolism is a continuation of the theme that Jesus is king. The large amount of spices used, may indicate a royal burial Jer 34:5 speaks of the use of spices in the burial of kings. It is good in this connection to ponder over the West Syriac ritual of Passion Friday prescribing the anointing of the Cross with various kinds of aromatic spices before its burial and the East Syriac ritual directing to incense profusely the Sliba, the Cross, before burying it inside the altar, the tomb of Jesus. The mention that he is buried in a garden reminds us of the entombment of the kings of Judah (2 Kg 21:18.26). Although it is not evident conclusively that Jesus was buried as a king, this theme is a fitting conclusion to the Johannine passion narrative, wherein Jesus is crowned and hailed as king during his trial, was enthroned and was publicly proclaimed as king on the cross. Moreover, it is certain that one of the main accusations for crucifixion was his kingship.
Of course, without much difficulty, this ironic statement of Isaac the Syrian is evident in itself. Anyhow, one thing is crystal clear: the justice of God is his mercy. The term rahme, ‘mercy’ or its equivalent appears very often in the Passion Friday Liturgy.
On the Passion Friday these Churches contemplate not merely Christ's human pain and suffering, but rather on the contrast between his outward or worldly humiliation and his inward or heavenly glorification. According to the real genius of this individual tradition, a believer looks not merely at the suffering humanity of Christ, but at a suffering God. The references to Bra Ihidaya, the ‘only son’, Breh da-Mraima, the ‘Son of the most High’ Amman-hu-El, ‘God with us’, Isho Paroqa, ‘Jesus the Redeemer’, Mara da-nbie, ‘the Lord of the prophets’, Mara d-kahne, the ‘Lord of priests’, Bra d-etha min rawma, the ‘Son who came from above’, Mara d-hekmtha, the ‘Lord of wisdom’, Bar-Haiya, the ‘Son of the Living One’, Malka Meshiha, the ‘King Christ’, Bra d-Ateos, the ‘Son of God’, Mara d-haiye, the ‘Lord of all living creatures’, and so on, only in this hymn of 'typology' show that the worshiping community is contemplating not merely the suffering humanity of Jesus, but the suffering of God “who came down and was hung for us on the wood” of the Cross.
Even in Passion Friday Liturgy, the emphasis is on the Resurrection and glorification of Jesus Christ. Behind the veil of Jesus’ bleeding and disfigured flesh, the East Syriac Churches discern the Triune God. Gagulta for them is a place of theophany. The crucifixion can never be separated from the resurrection. Hence in the hymn quoted above they sing: “Blessed is your death, glorious is your resurrection.” The death and resurrection are seen as a single action, according to Mar Aprem, the two sides of one coin. Gagulta is seen always in the light of the empty tomb; the Cross is the symbol of victory. They look at Jesus crucified not only to think of his suffering and desolation, not only to think about the sins and debts of men that caused the crucifixion, but also to think of Him as Christ the Victor, Christ the King, who reigns in triumph from the ‘tree of the Cross.’ “I call him King, because I see him crucified”, says St. John Chrysostom. Thus, this tradition gives so much importance to the Empty Cross, the lofty Symbol of King Lord Jesus Christ, our Saviour and Redeemer. It prompts us forcefully to move away from a kind of misunderstood fascination to the crucifix and to embrace whole-heartedly the Empty, Flowery Cross, for the Mar Toma Nasrani Church, the Mar Toma Sliba, the Saint Thomas Cross. Our Lord Jesus is not expecting a kind of sympathetic looking at his crucified body, but embracing the ‘lofty Symbol’ of his glorification through real conversion of hearts.
8. Cf Mt 8:17; Lk 22:37; Jn 1:29.36; 12:38; Acts 2:33; 8:32s; Rom 4:25; 8:32; 15:21; 1 Cor 15:3-5; 2 Cor 5:21; Phil 2:5-11; Heb 9:28; 1 Pet 2:21-25; 3:18; 1 Jn 2:2; 4:10, and so on.
9. M.McNAMARA, art. Daniel, in NELSON 669. He is opinion that the ancient Christian writers had done violence to the biblical text in their attempt to relate this prophecy directly to the activity of Jesus Christ. The modern biblical scholarship and understanding of the chronology according to the improved scientific methods demand a historical interpretation rather than a messianic one.
11. The fifth kingdom according to the conception of Daniel chs. 2 and 7; the first 4 kingdoms being those of the Babylonian, the Median, the Persian and the Greek.
15. A part of the passion narrative is directed to be read in the Lelya, the Night Liturgy of the previous day: Mt 26:31-44 + Lk 22:43-44 + Mt 26:45-50 + Lk 22:49-50 + Jn 18:10 + Mt 26:52 + Jn 18:11 + Mt 26:53-75.
18. W. BARCLAY, The Gospel of Matthew, 2, DSB, Philadelphia 1975, p. 371. Cf BEDJAN 2, 364 where the faithful sing that the Holy Spirit flew away from the Holy of holies when the Temple veil was rent.

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[262 U.S. 447, 448] Mr. Solicitor General Beck, of Washington, D. C., for Mellon and others.
[262 U.S. 447, 459] Messrs. Alexander Lincoln and J. Weston Allen, both of Boston, Mass., for Massachusetts.
[262 U.S. 447, 475] Messrs. Wm. L. Rawls and George Arnold Frick, both of Baltimore, Md., and William H. Lamar and Lucius Q. C. Lamar, both of Washington, D. C., for Frothingham.
These cases were argued and will be considered and disposed of together. The first is an original suit in this court. The other was brought in the Supreme Court of the District of Columbia. That court dismissed the bill and its decree was affirmed by the District Court of Appeals. Thereupon the case was brought here by appeal. [262 U.S. 447, 479] Both cases challenge the constitutionality of the Act of November 23, 1921, 42 Stat. 224, c. 135, commonly called the Maternity Act. Briefly, it provides for an initial appropriation and thereafter annual appropriations for a period of five years, to be apportioned among such of the several states as shall accept and comply with its provisions, for the purpose of co-operating with them to reduce maternal and infant mortality and protect the health of mothers and infants. It creates a bureau to administer the act in co-operation with state agencies, which are required to make such reports concerning their operations and expenditures as may be prescribed by the federal bureau. Whenever that bureau shall determine that funds have not been properly expended in respect of any state, payments may be withheld.
It is asserted that these appropriations are for purposes not national, but local to the states, and together with numerous similar appropriations constitute an effective means of inducing the states to yield a portion of their sovereign rights. It is further alleged that the burden of the appropriations provided by this act and similar legislation falls unequally upon the several states, and rests largely upon the industrial states, such as Massachusetts; that the act is a usurpation of power not granted to Congress by the Constitution-an attempted exercise of the power of local self-government reserved to the states by the Tenth Amendment; and that the defendants are proceeding to carry the act into operation. In the Massachusetts Case it is alleged that the plaintiff's rights and powers as a sovereign state and the rights of its citizens have been invaded and usurped by these expenditures and acts, and that, although the state has not accepted the act, its constitutional rights are infringed by the passage thereof and the imposition upon the state of an illegal and unconstitutional option either to yield to the federal government a part of its reserved rights or [262 U.S. 447, 480] lose the share which it would otherwise be entitled to receive of the moneys appropriated. In the Frothingham Case plaintiff alleges that the effect of the statute will be to take her property, under the guise of taxation, without due process of law.
In an earlier case it was held that a proceeding by mandamus by one state to compel the Governor of another to surrender a fugitive from justice was not within the powers of the judicial department, since the duty of the Governor in the premises was in the nature of a moral rather than a legal obligation. Kentucky v. Dennison, 24 How. 66, 109. In New Hampshire v. Louisiana and New York v. Louisiana, 108 U.S. 76 , 2 Sup. Ct. 176, this court declined to take jurisdiction of actions to enforce payment of the bonds of another state for the benefit of the assignors, citizens of the plaintiff states. In Georgia v. Stanton, 6 Wall. 50, 75, and kindred cases, to which we shall presently refer, jurisdiction was denied in respect of questions of a political or governmental character. On the other hand, jurisdiction was maintained in Texas v. White, 7 [262 U.S. 447, 482] Wall. 700, The State of Florida v. Anderson, 91 U.S. 667 , and Alabama v. Burr, 115 U.S. 413 , 6 Sup. Ct. 81, because proprietary rights were involved; in Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 , 27 S. Sup. Ct. 618, 11 Ann. Cas. 488, because the right of dominion of the state over the air and soil within its dominion was affected; in Missouri v. Holland, 252 U.S. 416 , 40 Sup. Ct. 382, 11 A. L. R. 984, because, as asserted, there was an invasion, by acts done and threatened, of the quasi sovereign right of the state to regulate the taking of wild game within its borders; and in other cases because boundaries were in dispute. It is not necessary to cite additional cases. The foregoing for present purposes sufficiently indicate the jurisdictional line of demarcation.
What, then, is the nature of the right of the state here asserted and how is it affected by this statute? Reduced to its simplest terms, it is alleged that the statute constitutes an attempt to legislate outside the powers granted to Congress by the Constitution and within the field of local powers exclusively reserved to the states. Nothing is added to the force or effect of this assertion by the further incidental allegations that the ulterior purpose of Congress thereby was to induce the states to yield a portion of their sovereign rights; that the burden of the appropriations falls unequally upon the several states; and that there is imposed upon the states an illegal and unconstitutional option either to yield to the federal government a part of their reserved rights or lose their share of the moneys appropriated. But what burden is imposed upon the states, unequally or otherwise? Certainly there is none, unless it be the burden of taxation, and that falls upon their inhabitants, who are within the taxing power of Congress as well as that of the states where they reside. Nor does the statute require the states to do or to yield anything. If Congress enacted it with the ulterior purpose of tempting them to yield, that purpose may be effectively frustrated by the simple expedient of not yielding. [262 U.S. 447, 483] In the last analysis, the complaint of the plaintiff state is brought to the naked contention that Congress has usurped the reserved powers of the several states by the mere enactment of the statute, though nothing has been done and nothing is to be done without their consent; and it is plain that that question, as it is thus presented, is political, and not judicial in character, and therefore is not a matter which admits of the exercise of the judicial power.
See, also, Luther v. Borden, 7 How. 1; Mississippi v. Johnson, 4 Wall. 475, 500; Pacific Telephone Co. v. Oregon, 223 U.S. 118 , 32 Sup. Ct. 224; Louisiana v. Texas, 176 U.S. 1, 23 , 20 S. Sup. Ct. 251; Fairchild v. Hughes, 258 U.S. 126 , 42 Sup. Ct. 274.
It follows that, in so far as the case depends upon the assertion of a right on the part of the state to sue in its own behalf, we are without jurisdiction. In that aspect of the case we are called upon to adjudicate, not rights of [262 U.S. 447, 485] person or property, not rights of dominion over physical domain, not quasi sovereign rights actually invaded or threatened, but abstract questions of political power, of sovereignty, of government. No rights of the state falling within the scope of the judicial power have been brought within the actual or threatened operation of the statute, and this court is as much without authority to pass abstract opinions upon the constitutionality of acts of Congress as it was held to be, in Cherokee Nation v. Georgia, supra, of state statutes. If an alleged attempt by congressional action to annul and abolish an existing state government 'with all its constitutional powers and privileges,' presents no justiciable issue, as was ruled in Georgia v. Stanton, supra, no reason can be suggested why it should be otherwise where the attempt goes no farther, as it is here alleged, than to propose to share with the state the field of state power.
We come next to consider whether the suit may be maintained by the state as the representative of its citizens. To this the answer is not doubtful. We need not go so far as to say that a state may never intervene by suit to protect its citizens against any form of enforcement of unconstitutional acts of Congress; but we are clear that the right to do so does not arise here. Ordinarily, at least, the only way in which a state may afford protection to its citizens in such cases is through the enforcement of its own criminal statutes, where that is appropriate, or by opening its courts to the injured persons for the maintenance of civil suits or actions. But the citizens of Massachusetts are also citizens of the United States. It cannot be conceded that a state, as parens patriae, may institute judicial proceedings to protect citizens of the United States from the operation of the statutes thereof. While the state, under some circumstances, may sue in that capacity for the protection of its citizens (Missouri v. Illinois and Chicago District, 180 U.S. 208, 241 , 21 S. Sup. Ct. 331), it is no [262 U.S. 447, 486] part of its duty or power to enforce their rights in respect of their relations with the federal government. In that field it is the United States, and not the state, which represents them as parens patriae, when such repres ntation becomes appropriate; and to the former, and not to the latter, they must look for such protective measures as flow from that status.
Second. The attack upon the statute in the Frothingham Case is, generally, the same, but this plaintiff alleges, in addition that she is a taxpayer of the United States; and her contention, though not clear, seems to be that the effect of the appropriations complained of will be to increase the burden of future taxation and thereby take her property without due process of law. The right of a taxpayer to enjoin the execution of a federal appropriation act, on the ground that it is invalid and will result in taxation for illegal purposes, has never been passed upon by this court. In cases where it was presented, the question has either been allowed to pass sub silentio or the determination of it expressly withheld. Millard v. Roberts, 202 U.S. 429, 438 , 26 S. Sup. Ct. 674; Wilson v. Shaw, 204 U.S. 24, 31 , 27 S. Sup. Ct. 233; Bradfield v. Roberts, 175 U.S. 291, 295 , 20 S. Sup. Ct. 121. The case last cited came here from the Court of Appeals of the District of Columbia, and that court sustained the right of the plaintiff to sue by treating the case as one directed against the District of Columbia, and therefore subject to the rule, frequently stated by this court, that resident taxpayers may sue to enjoin an illegal use of the moneys of a municipal corporation. Roberts v. Bradfield, 12 App. D. C. 453, 459, 460. The interest of a taxpayer of a municipality in the application of its moneys is direct and immediate and the remedy by injunction to prevent their misuse is not inappropriate. It is upheld by a large number of state cases and is the rule of this court. Crampton v. Zabriskie, 101 U.S. 601 , 609. Nevertheless, there are decisions to the contrary. See, [262 U.S. 447, 487] for example, Miller v. Grandy, 13 Mich. 540, 550. The reasons which support the extension of the equitable remedy to a single taxpayer in such cases are based upon the peculiar relation of the corporate taxpayer to the corporation, which is not without some resemblance to that subsisting between stockholder and private corporation. 4 Dillon, Municipal Corporations (5th Ed.) 1580 et seq. But the relation of a taxpayer of the United States to the federal government is very different. His interest in the moneys of the treasury-partly realized from taxation and partly from other sources-is shared with millions of others, is comparatively minute and indeterminable, and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity.
The administration of any statute, likely to produce additional taxation to be imposed upon a vast number of taxpayers, the extent of whose several liability is indefinite and constantly changing, is essentially a matter of public and not of individual concern. If one taxpayer may champion and litigate such a cause, then every other taxpayer may do the same, not only in respect of the statute here under review, but also in respect of every other appropriation act and statute whose administration requires the outlay of public money, and whose validity may be questioned. The bare suggestion of such a result, with its attendant inconveniences, goes far to sustain the conclusion which we have reached, that a suit of this character cannot be maintained. It is of much significance that no precedent sustaining the right to maintain suits like this has been called to our attention, although, since the formation of the government, as an examination of the acts of Congress will disclose, a large number of statutes appropriating or involving the expenditure [262 U.S. 447, 488] of moneys for nonfederal purposes have been enacted and carried into effect.
The functions of government under our system are apportioned. To the legislative department has been committed the duty of making laws, to the executive the duty of executing them, and to the judiciary the duty of interpreting and applying them in cases properly brought before the courts. The general rule is that neither department may invade the province of the other and neither may control, direct, or restrain the action of the other. We are not now speaking of the merely ministerial duties of officials. Gaines v. Thompson, 7 Wall. 347. We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy. It amounts to little more than the negative power to disregard an unconstitutional enactment, which otherwise would stand in the way of the enforcement of a legal right. The party who invokes the power must be able to show, not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally. If a case for preventive relief be presented, the court enjoins, in effect, not the execution of the statute, but the acts of the official, the statute notwithstanding. Here the parties plaintiff have no such case. Looking through forms of words to the substance of their complaint, it is merely that officials of the executive department of the government are executing and will execute an act of Congress asserted to be unconstitutional; and this we are asked to prevent. To [262 U.S. 447, 489] do so would be, not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and coequal department, an authority which plainly we do not possess.

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The Ninth Circuit made waves recently with its decision in Lenz v. Universal Music Corp., in which it decided that a plaintiff in a copyright infringement case must first take potential fair use considerations into account before filing a takedown notice under the DMCA. Lenz, represented by the EFF, claimed that Universal had not formed a good faith belief that an infringement had occurred as required by § 512(c)(3)(A)(v). Consequently, Lenz sought damages under § 512(f), alleging that Universal made material misrepresentations in issuing a takedown notice without first considering a fair use defense.
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work … is not an infringement of copyright.
In support of its contention, the Ninth Circuit goes on to cite a case in the Eleventh Circuit as well as legislative material suggesting that Congress intended that fair use no longer be considered as an affirmative defense. Thus, in the Ninth Circuit’s view, such fair use at best qualifies as a sort of quasi-defense, and most likely constitutes an element of an infringement claim. After all, if fair use is literally non-infringing, then establishing infringement requires ruling out fair use, as well.
Or so says the Ninth Circuit. But it takes little more than a Google search — let alone the legal research one should expect of federal judges and their clerks — to realize that the court is woefully, and utterly, incorrect.
Is Fair Use an Affirmative Defense ?
Further, in reaching this opinion the Court relied on its earlier precedent in Harper & Row, where, in discussing the “purpose of the use” prong of § 107, the Court said that “[t]he drafters [of § 107] resisted pressures from special interest groups to create presumptive categories of fair use, but structured the provision as an affirmative defense requiring a case-by-case analysis.” Not surprisingly, other courts are inclined to follow the the Supreme Court. Thus the Eleventh Circuit, the Southern District of New York, and the Central District of California (here and here), to name but a few, all explicitly refer to fair use as an affirmative defense. Oh, and the Ninth Circuit did too, at least until Lenz.
It bears noting that the Court in Sony Corp. did not discuss whether or not fair use is an affirmative defense, whereas Acuff Rose (decided 10 years after Sony Corp.) and Harper & Row decisions do.
Although the traditional approach is to view “fair use” as an affirmative defense, . . . it is better viewed as a right granted by the Copyright Act of 1976. Originally, as a judicial doctrine without any statutory basis, fair use was an infringement that was excused—this is presumably why it was treated as a defense. As a statutory doctrine, however, fair use is not an infringement. Thus, since the passage of the 1976 Act, fair use should no longer be considered an infringement to be excused; instead, it is logical to view fair use as a right. Regardless of how fair use is viewed, it is clear that the burden of proving fair use is always on the putative infringer.
Better yet, in a subsequent opinion the Eleventh Circuit further clarified the position that the view of fair use as an affirmative defense is binding Supreme Court precedent, notwithstanding any judge’s personal preferences to the contrary.
As with all other affirmative defenses, a plaintiff must first make out a prima facie case before the defense can be raised. So how do we make sense of the language in § 107 that determines fair use to not be infringement? In essence, it appears to be a case of inartful drafting. Particularly in light of the stated aims of the DMCA — a law that was enacted after the Supreme Court established that fair use was an affirmative defense — the nature of fair use as an affirmative defense that can only be properly raised by an accused infringer is as close to black letter law as it gets.
The DMCA was enacted to strike a balance between the interests of rightsholders in protecting their property, and the interests of society in having an efficient mechanism for distributing content. Currently, rightsholders send out tens of millions of takedown notices every year to deal with the flood of piracy and other infringing uses. If rightsholders were required to consider fair use in advance of each of these, the system would be utterly unworkable — for instance, in Google’s search engine alone, over 54 million removal requests were made in just the month of August 2015 owing to potential copyright violations. While the evisceration of the DMCA is, of course, exactly what the plaintiffs (or more accurately, EFF, which represented the plaintiffs) in Lenz wanted, it’s not remotely what the hard-wrought compromise of the statute contemplates.
And the reason it would be unworkable is not just because of the volume of the complaints, but because fair use is such an amorphous concept that ultimately requires adjudication.
Not only are there four factors to consider in a fair use analysis, but there are no bright line rules to guide the application of the factors. The open ended nature of the defense essentially leaves it up to a defendant to explain just why his situation should not constitute infringement. Until a judge or a jury says otherwise, how is one to know whether a particular course of conduct qualifies for a fair use defense?
Thus, it is the slightest of fig leaves that is necessary to satisfy the Lenz court’s new requirement that fair use be considered before issuing a takedown notice.
What’s more, this statement from the court also demonstrates the near worthlessness of reading a prima facie fair use requirement into the takedown requirements. Short of a litigant explicitly disclaiming any efforts to consider fair use, the standard could be met with a bare assertion. It does, of course, remain an open question whether the computer algorithms the rightsholders employ in scanning for infringing content are actually capable of making fair use determinations — but perhaps throwing a monkey wrench — any monkey wrench — into the rightsholders’ automated notice-and-takedown systems was all the court was really after. I think we can at least be sure that that was EFF’s aim, anyway, as they apparently think that § 512 tends to be a tool of censorship in the hands of rightsholders.
The structure of the takedown and put-back provisions of the DMCA also cut against the Lenz court’s view. The put-back requirements of Section 512(g) suggest that affirmative defenses and other justifications for accused infringement would be brought up after a takedown notice was submitted. What would be the purpose of put-back response, if not to offer the accused infringers justifications and defenses to an allegation of infringement? Along with excuses such as having a license, or a work’s copyright being expired, an alleged infringer can bring up the fair use grounds under which he believed he was entitled to use the work in question.
In short, to require a rightsholder to analyze fair use in advance of a takedown request effectively requires her to read the mind of an infringer and figure out what excuse that party plans to raise as part of her defense. This surely can’t have been what Congress intended with the takedown provisions of the DMCA — enacted as they were years after the Supreme Court had created the widely recognized rule that fair use is an affirmative defense.
Well, widely recognized, that is, except in the Ninth Circuit. This month, anyway.
Update: I received some feedback on this piece which pointed out an assumption I was making with respect to the Ninth Circuit’s opinion, and which deserves a clarifying note. Essentially, the Lenz court splits the concept of affirmative defenses into two categories: (1) an affirmative defense that is merely a label owing to the procedural posture of a case and (2) an affirmative defense, as it is traditionally understood and that always puts the burden of production on a defendant. By characterizing affirmative defenses in this way, the Lenz court gets to have its cake and eat it too: when an actual proceeding is filed, a defendant will procedurally have the burden of production on the issue, but since fair use is at most a quasi-affirmative defense, the court felt it was fair to shift that same burden onto rightsholders when issuing a takedown letter. So technically the court says that fair use is an affirmative defense (as a labeling matter), but it does not practically treat is as such for the purposes of takedown notices.
Kristian Stout is the Associate Director at the International Center for Law and Economics (ICLE) and a contributor to TheHill.com. As a technology professional and entrepreneur for over ten years, Kristian’s scholarship is influenced by a practical understanding of the challenges facing innovators in the modern economy. Kristian has previously been a lecturer in the computer science department of Rutgers University, is frequently invited to speak on law and technology topics, and has been published in law journals and legal treatises. Kristian is an attorney licensed to practice law in New Jersey and Pennsylvania; is a partner at A&S Technologies, a software services firm; a member of the NJ State Advisory Committee to the United States Commission on Civil Rights; and sits on the board of the New Jersey Leadership Program, a nonprofit that places southasian youth into political internships in New Jersey.


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By chapter 267 (page 571), Statutes 1923, as amended (chapters 716 and 795 (pages 1309, 1565), Statutes 1927), the state of California undertook to lay a license tax upon every distributor for each gallon of motor vehicle fuel 'sold and delivered by him in this State' with certain exceptions not here important.
At its own expense and risk, appellant, a Delaware corporation, qualified to do business in California, sold and delivered to the Post Exchange, within the Presidio of San Francisco, 420 gallons of gasoline. It carried this to the Exchange's place of business in barrels or by tank trucks. Both sale and delivery were within the area long held and occupied by the United States for military purposes.
The state demanded of appellant three cents per gallon upon the gasoline so sold and delivered. Payment being refused, this suit followed. In the trial court the company prevailed. The Supreme Court held to the contrary and, among other things, said: 'We have thus presented the question whether sales and deliveries of gasoline at a military reservation under the sole jurisdiction of the United States, made to the army post exchange therein, are to be excluded in fixing the license fees to be paid by the distributor under said act of the Legislature. * * * It is at once conceded, as already implied, that the military reservation in question is territory over which the United States exercises sole legislative authority. * * * It is contended that, by reason of this concession, a sale consummated on it is a sale outside the state, as though consummated in Nevada or Oregon. It is our conclusion that the manifest intention of the act was to include all sales completed within the geographical confines of the state, and for this purpose said military reservation was to be included like all other territory.' 22 P.(2d) 2, 3.
The Presidio of San Francisco, a tract of more than fourteen hundred acres, lies between that city and the Golden Gate, and is within the exterior limits of California. Established as a military post under Spanish dominion about 1776, it continued to be so used by the Republic of Mexico until ceded to the United States in 1848 by the Treaty of Guadalupe Hidalgo (9 Stat. 922). An executive order of November 6, 1850, dedicated it to public purposes; since then it has been occupied as a military reservation. By Act of March 2, 1897 (St. Cal. 1897, p. 51), California ceded to the United States exclusive jurisdiction over this area with a proviso: 'That this State reserves the right to serve and execute on said lands all civil process, not incompatible with this cession, and such criminal process as may lawfully issue under the authority of this State against any person or persons charged with crimes committed without said lands.' See United States v. Watkins (D.C.) 22 F.(2d) 437. The state reserved to herself no power whatever in respect of taxation.
In three recent cases—Arlington Hotel Co. v. Fant, 278 U.S. 439, 49 S.Ct. 227, 73 L.Ed. 447, United States v. Unzeuta, 281 U.S. 138, 50 S.Ct. 284, 74 L.Ed. 761, and Surplus Trading Co. v. Cook, 281 U.S. 647, 50 S.Ct. 455, 74 L.Ed. 1091—we have pointed out the consequences of cession by a state to the United States of jurisdiction over lands held by the latter for military purposes. Considering these opinions, it seems plain that by the act of 1897 California surrendered every possible claim of right to exercise legislative authority within the Presidio—put that area beyond the field of operation of her laws. Accordingly, her Legislature could not lay a tax upon transactions begun and concluded therein.
Arlington Hotel Company v. Fant, 278 U.S. 439, 49 S.Ct. 227, 73 L.Ed. 447, denied the power of Arkansas by legislation to modify the liability of innkeepers within a reservation ceded by her to the United States.
United States v. Unzeuta, 281 U.S. 138, 50 S.Ct. 284, 74 L.Ed. 761, affirmed the exclusive jurisdiction of the United States over crimes committed within a reservation lying within Nebraska. Jurisdiction had been ceded by the state.
Surplus Trading Co. v. Cook, 281 U.S. 647, 50 S.Ct. 455, 74 L.Ed. 1091, ruled that land within Arkansas purchased by the United States for military purposes with the state's consent was under their exclusive jurisdiction. Private personal property therein was declared not subject to taxation by the state.

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