Mainstream News Article Talks Up The Importance Of Fair Use

from the you-don't-see-that-every-day dept

Tue, Sep 27th 2011 6:20am — Mike Masnick

jupiterkansas was the first of a few of you to send over this article about a Kansas City Star article praising fair use and talking up how important it is to culture.

Watch tonight�s �Daily Show� and count the number of TV, movie and music clips you see or hear during the episode. Ten? Twenty?

While you�re doing that, note how often Stewart makes fun of the subject of the clip. (If he�s talking about CNN or Fox News Channel, this part will be easy.) Do the same for companion show �The Colbert Report.�

Now, guess how often Stewart and Colbert ask their attorneys to clear the rights to all those copyrighted clips.

America�s most acclaimed satirists turn out to also be our most powerful exploiters of �fair use,� the legal loophole that permits use of copyrighted works without the onerous and often expensive process of rights clearance.

The article is pretty long and detailed (and quotes some of my favorite experts, including Nancy Baym and Patricia Aufderheide -- whose new book, written with Peter Jaszi, called Reclaiming Fair Use is sitting on my desk -- though I haven't had a chance to read it yet). It does note that fair use is still sometimes a bit hit or miss in the courts, but overall this is a really comprehensive article on the subject. It's just kind of surprising to see it in a big newspaper. Even though fair use is increasingly important to people, it's just not the sort of thing most in the media seemed interested in writing about -- even if they're covering copyright related stories.

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Filed Under: copyright, culture, fair use

30 Comments

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Anonymous Coward, 27 Sep 2011 @ 6:24am

Now when will they talk up the importance of outlawing public domain theft.
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sooooo, 27 Sep 2011 @ 6:29am

hahaha ok
fair use in a system with a dmca and 150 year or so copyright...hahahahaha sorry i have to laugh.
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security certificate failed, 27 Sep 2011 @ 6:30am

security certificate failed
security certificate failed
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Marc John Randazza (profile), 27 Sep 2011 @ 6:36am

Fair Use
The problem with fair use is that it has few barbs. During all the talk about copyright reform, i've been consistently disappointed to see no greater protections for fair use. I'd like to see us follow Brazil's lead, with penalties for hindering fair use. A national anti-slapp bill would kill two birds with one stone, but giving Section 107 bigger balls, with a mandatory attorneys fees provision for defendants who successfully raise a fair use defense, that would be a thing of beauty.
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Anonymous Coward, 27 Sep 2011 @ 6:37am

America�s most acclaimed satirists turn out to also be our most powerful exploiters of �fair use,� the legal loophole that permits use of copyrighted works without the onerous and often expensive process of rights clearance.

This is funny since it's really the other way around, and copyright is the legal loophole that limits [fair] use and causes onerous and often expensive processes.
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John Doe, 27 Sep 2011 @ 6:39am

Legal loophole?
I don't like how they refer to fair use as a loop hole. Loop holes are when you exploit an area of the law that just wasn't codified. Fair use, if I am not mistaken, is explicitly codified into the law. So no, it is not a loop hole, it is the law.
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pjcamp (profile), 27 Sep 2011 @ 6:53am

fair use is not a loophole
It is a right, designed in from the start.

Loopholes are odd quirks of the law, regarded as being somehow unfair or unintended, which the unscrupulous can exploit to their advantage.

Fair use is and always has been a part of copyright law since the Constitution first defined copyrights as intended for the benefit of society, not the protection of IP owners.
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DannyB (profile), 27 Sep 2011 @ 6:54am

Re: Also please deal with false DMCA takedowns
My favorite remedy would be that the statutory damages for each false DMCA takedown are equal to the statutory damages for each instance of copyright infringement.

What is that, $150,000 per false DMCA takedown filed?

It also might not hurt to put SOME TEETH into that "under penalty of perjury" thingy.
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Anonymous Coward, 27 Sep 2011 @ 7:00am

Reasonable fair use is never an issue, never has been, never will be. What is objectionable is the use of much more than a "fair" amount of work, and using in ways that just isn't "fair". Jon Stewart does a comedy news program, and they don't run full length movies or TV shows in their show, they run short clips and such, without issue.

Mike, it's like you just don't understand the basics of fair use.
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John Doe, 27 Sep 2011 @ 7:07am

Re:
How about the youtube video that showed a baby dancing to a song (by Prince I believe) that received a DMCA take down notice? The video was poor, the song was low in the background yet it got taken down. That is exactly what fair use should prevent. The reason this makes the news here is because IP holders greatly abuse the fair use clause not the other way around.
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Anonymous Coward, 27 Sep 2011 @ 7:15am

Re:
Righthaven.
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out_of_the_blue, 27 Sep 2011 @ 7:21am

"Bashing copyright just because it makes media companies rich..."
"is sort of like bashing hybrid cars because they make automakers rich."

Article is a bit nuanced compared to Mike's views.

But it just about makes me be against fair use with this:
' 2004 Danger Mouse creates �The Grey Album,� a mashup of the Beatles� �White Album� and Jay-Z�s �Black Album.� '
Ewww, yuck. Just because allowed under fair use doesn't mean should be done. It's like the deliberate breeding of already nasty dogs to further enhance nasty features. And even more disgusting for "humans" to facilitate by hand.
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Anonymous Coward, 27 Sep 2011 @ 7:26am

Re: Re:
John, "news" programs have a very great latitude in what is fair use for the purposes of the stories.

Fair use doesn't mean "any use". The dancing baby thing is a good example of "any use" which isn't generally permitted. Sorry!
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Marc John Randazza (profile), 27 Sep 2011 @ 7:26am

Re: Re: Also please deal with false DMCA takedowns
DannyB wrote:

My favorite remedy would be that the statutory damages for each false DMCA takedown are equal to the statutory damages for each instance of copyright infringement.

What is that, $150,000 per false DMCA takedown filed?

It also might not hurt to put SOME TEETH into that "under penalty of perjury" thingy.

Agreed. While Lenz v. Universal shows that section 512 can bite back, it is so rare because the law is not really designed to care about fair use. I'm not sure about the limit you suggest (although I'm not entirely against it), but some very real penalties for false, and even erroneous, DMCA takedowns are in order.
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Anonymous Coward, 27 Sep 2011 @ 7:36am

Re: Re: Re:
"Fair use doesn't mean "any use". The dancing baby thing is a good example of "any use" which isn't generally permitted."

Uh...why? It's a baby...dancing to a song. So what?

Why is that not fair use, and the indiscriminate use of clips from several sources in a comedy show, as done by the daily show/colbert report, is?
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John Doe, 27 Sep 2011 @ 7:41am

Re: Re: Re:
Citation needed.
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John Doe, 27 Sep 2011 @ 7:43am

Re: Re: Re: Re:
Would the dancing baby fail the four factors test? Doubt it.

http://www.copyright.gov/fls/fl102.html
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Anonymous Coward, 27 Sep 2011 @ 7:45am

Re: Re: Re:
you forgot your /sarc tag there.
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Mark, 27 Sep 2011 @ 7:46am

What about fair use of our own private property and our own businesses? There are a large number of governmental agencies which are run by presidential appointees. These appointees must be approved of by congress. What happens when the Congress and the President are all on the same party line is that the vast bureaucratic ship of state turns towards a direction that looks a lot like a centralization of power and a primary dominion. These are things which the founders of America sought to avoid.
http://msmignoresit.blogspot.com/2011/09/appointed-bureaucracy.html
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Anonymous Coward, 27 Sep 2011 @ 7:51am

Re: "Bashing copyright just because it makes media companies rich..."
It would be like bashing hybrid cars because they make automakers rich if the government issued laws that prevented people from showing pictures of their own hybrid cars or allowed friends to ride along with them.

Sooo... we should outlaw things you don't like or find disgusting?

Or even entertain the idea of this?

I find that idea rather disgusting for "humans" to facilitate by hand and posting as a comment on an opinion blog. The government should restrict your rights in this.
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Jay (profile), 27 Sep 2011 @ 8:02am

Re: Legal loophole?
It actually isn't. The US was given the fair use doctrine through case law, whereas most other countries don't have fair use at all.

Justice Stevens was one of the gentleman that gave us that flexibility of fair use by giving the 4 tests that became the standard for it.

However, if you were to practice it, you quickly see the failures of fair use as a defense. You have to raise it, and a judge has to accept it. It was one of the problems of the filesharing cases of Tenenbaum, Harper, and Thomas.

So while it's not necessarily the law as I would hope, it is still fairly important if a judge recognizes it.
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Anonymous Coward, 27 Sep 2011 @ 8:19am

Re: Re: Re: Re:
So what?

It's a girl, dancing to a song.

It's a TV show with a girl dancing to a song.

It's called "dancing with the stars".

Which one is "fair use"?

They are all, after all, just a video of someone dancing to music.
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Anonymous Coward, 27 Sep 2011 @ 8:42am

Re: Re: Re: Re: Re:
So you're conflating a video of a baby dancing to music with a clip from dancing with the stars in an attempt to argue that it's not fair use of... the song the baby is dancing to? I mean could you please consistently identify which copyrighted thing it is you're talking about instead of switching from a song to a TV clip between examples as if they're the same?
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Anonymous Coward, 27 Sep 2011 @ 8:42am

Re: Re: Re:
Videos of dancing to music are fair uses of the music. Sorry!
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Pat Aufderheide (profile), 27 Sep 2011 @ 11:31am

Reclaiming Fair Use and rule of reason
It's exciting to see Aaron Barnhart's work flagged in TechDirt; Aaron himself is an active and cheerful fair user on his blog, by the way. And of course as a pop culture critic, he's more than entitled.
I think that some of the debate in these comments will be helped by a quick scan of Peter Jaszi's and my new book, Reclaiming Fair Use(http://centerforsocialmedia.org/reclaiming and http://www.facebook.com/ReclaimingFairUse). It discusses the case of Lenz v Universal (baby dancing to Prince), among other things. Refresher: EFF and the mom, Stephanie Lenz, sued Universal for its takedown (her countertakedown made it go back up). The case is still stalled out; Universal is dragging out the process after losing in interim decisions. But the fact that Universal got egg on its face has certainly made it clear to lots of others that incidental quotation is perfectly within fair use. (You can also see explanations why that's so, made by doc filmmakers and remixers in two codes of best practices in fair use, on our website, centerforsocialmedia.org/fair-use.) We're excited to see more and more people realizing that there's a pretty comfortable center zone in fair use that's easy to understand and use, and of course, the more people who use it, the bigger that zone gets. Fair use is a muscle; use it or lose it!
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Mike Masnick (profile), 27 Sep 2011 @ 12:27pm

Re: Legal loophole?
I don't like how they refer to fair use as a loop hole. Loop holes are when you exploit an area of the law that just wasn't codified. Fair use, if I am not mistaken, is explicitly codified into the law. So no, it is not a loop hole, it is the law.

True... though historically it did come from a loophole. Fair use was a common law/judge-made concept, and only codified in 1976.
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Mike Masnick (profile), 27 Sep 2011 @ 12:30pm

Re: fair use is not a loophole
It is a right, designed in from the start.

I wouldn't say that "fair use" was designed from the start, because it really wasn't...
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JMT (profile), 27 Sep 2011 @ 2:39pm

Re:
I'd tweak that to say "copyright is the legal noose that limits [fair] use and causes onerous and often expensive processes."
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JMT (profile), 27 Sep 2011 @ 3:00pm

Re: Re: Re:
The dancing baby thing is a good example of "any use" which isn't generally permitted.

It's a good example of the massive over-reach of the current copyright system.

It's a good example of how rightsholders over-value their content, i.e. implying that particular piece of music added value to the clip.

It's a good example of rightsholders failing to see how this was essentially free advertising for "their" song, the use of which did not disadvantage them in any way, shape or form.

It's a good example of completely missing the point about why people post videos like this, i.e. to share a funny moment with family, not to gain some tangible benefit from the "use" of the music.

It's a good example of the many reasons why the public's respect for copyright is at all all-time low.

It's a good example of why so many people have made a conscious decision to not do anything that might financially benefit perpetrators of copyright abuse, i.e. buying their product!
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Anonymous Coward, 27 Sep 2011 @ 3:25pm

Re: Re: Re: Re: Re:
You are willfully stupid.
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