When it comes to copyright, content owners all too often believe it gives them a lot more control than it really does. For example, there's a belief that no one can ever use the content under "fair use" rules if it's for a commercial for-profit venture. One of the issues with fair use (which some in the entertainment industry continue to pretend doesn't exist) is that people often misread the four tests of fair use to believe that any commercial usage is not covered by fair use. Larry Lessig is pointing to an Appeals Court ruling highlighting why this isn't always the case. In the specific case, the Bill Graham Archives sued a book publisher for publishing a book about the Grateful Dead, using images of concert posters that were owned by the Archives. While the pictures are clearly being used for a commercial work, the court found that it was fair use. Specifically, they note that since the images are small and used within the context of descriptions about the history of the band, it's fine for fair use. It seems like a reasonable decision -- but could worry some copyright holders who freak out any time anyone uses their works in any way.
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