20 Years Ago 2 Live Crew, A Rude Rap Song And The Supreme Court Helped Clear The Way For The Modern Internet

from the fair-use-lives dept

Fri, Mar 7th 2014 1:43pm — Mike Masnick

A couple months ago, we had a blog post celebrating the 30th anniversary of the Supreme Court's decision that showed the Sony Betamax was legal, an important ruling that helped clear the field for innovations that could, potentially, be used for infringement, so long as they also had substantial non-infringing uses. Today is the anniversary of another important copyright decision. Twenty years ago today, the Supreme Court made a key ruling in Campbell v. Acuff-Rose, emphasizing that fair use can absolutely still apply for commercial use. That ruling is tremendously important to the history of the internet.

The case, if you don't recall, involved the rap group 2 Live Crew's song "Pretty Woman," which was a take on Roy Orbison's "Oh, Pretty Woman." And while a lower court tossed out the fair use question by saying that it was "presumptively unfair" due to being a commercial parody, the Supreme Court noted that commercial use can still be fair use, and that the "more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." That is, while commercial use is still a factor in determining fair use, if a work is transformative, whether or not it's a commercial use matters much less. That has very important consequences for all sorts of fair use today, including in television, movies, books and news.

Unfortunately, as Matt Schruers notes above, it's also a ruling that is frequently ignored or forgotten by many who think they understand copyright. The number of times we've had commenters here state that something can't be fair use if it's for commercial use is quite incredible, but at least we can assume those people just don't know. Where it gets especially troubling is when people whose job it is to know and understand this stuff seem to ignore it:

It is odd but true that the significance of commercial fair use is often lost in the copyright conversation. A recent House Judiciary hearing on fair use underrepresented the significance of fair use to business, and just this week I sat through a policy event where a speaker confidently declared U.S. trade policy need not address fair use because fair use deals only with “non-commercial” use — blissfully unaware, it would seem, that a unanimous Court thought otherwise. The most recent numbers available suggest that about 17% of U.S. GDP was produced by industries benefiting from fair use and other exceptions to copyright, and that the same industries (increasingly, high-value services) now lead export growth. As a result, other jurisdictions have realized that U.S. copyright law’s hospitality to basic, essential Internet functions like search is a national competitive advantage.

And this is an issue that is only going to become more important. As more and more things move online, there are ever greater questions about fair use in the context of internet services. The fact that this ruling helped cement the importance of transformative use, and made it clear that commercial use can be fair use, is a key part of why the internet can function today without all sorts of cloud and internet services being sued out of existence.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 2 live crew, copyright, fair use, pretty woman, supreme court

16 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

silverscarcat (profile), 7 Mar 2014 @ 12:24pm

Wait...
Is this the reason 50 Shades of Grey was allowed to be published?

...

If that's the case, I've got a 300+ chapter story to publish!
[ link to this | view in chronology ]
- Christopher Best (profile), 7 Mar 2014 @ 1:08pm
  
  Re: Wait...
  Nah, 50 Shade of Grey got published because the author changed enough of the details so that it wasn't fanfic anymore.
  
  Amazon might publish your fanfic, though. :P
  [ link to this | view in chronology ]
jackn, 7 Mar 2014 @ 2:07pm

The number of times we've had commenters here state that something can't be fair use if it's for commercial use is quite incredible, but at least we can assume those people just don't know.

The funny part is all the 'other' people (possibly Mike?), thinks this means its ok to completley copy another's work and sell it(as in a non-transformative). Like Mike says, "at least we can assume those people just don't know."
[ link to this | view in chronology ]
- jupiterkansas (profile), 7 Mar 2014 @ 2:15pm
  
  Re:
  Their assumption is that if any money is being made, you must pay the piper and it's a corporate mindset. They can't fathom fair use as anything other than a hobby someone does in their basement and they don't believe something can exist unless someone owns and controls it.
  
  That's why they don't practice fair use themselves in their business deealings and their lawyers make sure they pay to license everything even when they don't have to - and they expect everyone else to play that way too.
  
  It's basically if you've got enough money, you get to play the game, otherwise keep it in your basement.
  [ link to this | view in chronology ]
  - RD, 7 Mar 2014 @ 7:46pm
    
    Re: Re:
    "That's why they don't practice fair use themselves in their business deealings and their lawyers make sure they pay to license everything even when they don't have to - and they expect everyone else to play that way too. "
    
    Except when they steal from the Public Domain for nearly 100 years and then REFUSE to give even a single work back.
    [ link to this | view in chronology ]
    - jupiterkansas (profile), 8 Mar 2014 @ 11:16am
      
      Re: Re: Re:
      Their thinking is the public domain is all the stuff before modern copyright laws were put into place - but everything since then should be owned by someone forever. I'm sure that using public domain materials to create new work is beneficial because then the new work can be properly owned and licensed.
      [ link to this | view in chronology ]
- That One Guy (profile), 7 Mar 2014 @ 3:17pm
  
  Re:
  The funny part is all the 'other' people (possibly Mike?), thinks this means its ok to completley copy another's work and sell it(as in a non-transformative). Like Mike says, "at least we can assume those people just don't know."
  
  Nice strawman there, remember to keep it away from open flames and logic.
  
  Or as the saying goes 'Citation needed'.
  [ link to this | view in chronology ]
- John Fenderson (profile), 7 Mar 2014 @ 3:40pm
  
  Re:
  "The funny part is all the 'other' people (possibly Mike?), thinks this means its ok to completley copy another's work and sell it(as in a non-transformative)."
  
  I can't think of a single commenter here that believes this.
  [ link to this | view in chronology ]
Anonymous Coward, 7 Mar 2014 @ 2:11pm

yet every day the entertainment industries fight to sue people and fight to get these decisions overturned. why is that? they didn't manage to bribe the correct judges at the time or they think that after 20years, everything is going to be forgotten so they can go back to court and win this time? that may not be so bad as long as all the other decisions that went the industries way can be retried as well! as it is, the most ridiculous law that was made specifically for those industries was that circumventing DRM is forbidden. what the fuck were those dozy fuckers in Congress thinking? that had ruled that it was not illegal to make a back up of a bought disk, but then chucked this little gem in! Jeez! i have more brains in my ball bag!!
[ link to this | view in chronology ]
- Anonymous, 7 Mar 2014 @ 3:56pm
  
  Re:
  Yep. It's not the fact that you made a backup copy of a DVD that's illegal, it's the fact that you broke the copy protection in order to do it. Which really means nothing. It's a completely unenforceable law. I rent and rip all the time (gasp! Copyright and DMCA violations rolled into one!). Their laws are virtually meaningless to me. I say virtually because there is, of course, a certain thrill to doing that which is forbidden.
  [ link to this | view in chronology ]
Anonymous Coward, 7 Mar 2014 @ 3:37pm

Campbell was only arguing for parody to be fair use. His position in non-parody copyright cases is not so forgiving.

He sued 50 Cent for copyright infringement over the line "Go Sheila, it's your birthday." That case was dismissed because that phrase is too common to be protected by copyright, and is too inconsequential a part of Campbell's song.

Campbell was also one of the plaintiffs Alki David rounded up for his lawsuit/publicity stunt against CBS, asserting copyright infringement by promoting Limewire on CNet. Most or all of the plaintiffs, including Campbell, were severed 6 months ago. Is that case dead, or what?
[ link to this | view in chronology ]
- Anonymous, 7 Mar 2014 @ 4:31pm
  
  Re:
  Dead as Campbell's career, it seems.
  [ link to this | view in chronology ]
- Ninja (profile), 10 Mar 2014 @ 4:33am
  
  Re:
  While I see your point I'd argue that even if it's an exception to their behavior it's still a good thing that the ruling came out. Much like those porn copyright trolls, Perfect 10, trying the judicial system like crazy to blackmail file sharers. By doing that they are scoring important victories for the Public even though their intentions are nefarious to say the best.
  [ link to this | view in chronology ]
tanj, 7 Mar 2014 @ 5:44pm

Usable fair use
What we really need is some form of government agency that can review alleged fair use to determine whether or not it constitutes acceptable speech. It would be cheaper than having a trial and have less of a chilling effect than the status quo.
[ link to this | view in chronology ]
- Ninja (profile), 10 Mar 2014 @ 4:33am
  
  Re: Usable fair use
  Or rather such Govt body to check if something should be copyrighted at all?
  [ link to this | view in chronology ]
  - tanj, 10 Mar 2014 @ 5:53pm
    
    Re: Re: Usable fair use
    Sure, we could call them "free speech panels". They could determine what free speech rights people have.
    [ link to this | view in chronology ]