How 'Playing It Safe' Cripples Fair Use

from the limping-layer-of-pointlessness dept

extortion
This is about how over-budgeted media productions historically paid to license things they didn’t need to license, just because they had tons of money and their lawyers preferred to “play it safe” rather than claim Fair Use, which is how Fair Use became the weak pathetic limping layer of pointlessness it is today.

Why did you punch me? You didn't pay me not to.
…and this is what inevitably happens when you regularly pay people not to punch you...

You can't be too careful
...and this is why "playing it safe" compounds the problem.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    pegr, Nov 11th, 2011 @ 10:19am

    More Nina?

    Yea! More Nina!

    (Prepare for Nina bashing in 3... 2... 1...)

     

    reply to this | link to this | view in thread ]

  2.  
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    Pat Aufderheide, Nov 11th, 2011 @ 10:43am

    Fighting the Fear of Fair Use

    These comic strips are hilarious and right! Yes, there are real downsides in "being too careful." People self-censor, they abandon their free speech rights, and when they abandon their free speech rights they narrow the field of practice and effectively limit other people's free speech rights. The book I just wrote with Peter Jaszi, Reclaiming Fair Use, discusses this issue, and how eight different communities of practice have reclaimed their rights in ways that artists and others can also do.

     

    reply to this | link to this | view in thread ]

  3.  
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    Anonymous Coward, Nov 11th, 2011 @ 10:49am

    This is patent defense aggregation's entire business model.

     

    reply to this | link to this | view in thread ]

  4.  
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    lfroen (profile), Nov 11th, 2011 @ 10:50am

    Re: More Nina?

    who the hell is Nina? Is this author of this sita-sings-whatever?

     

    reply to this | link to this | view in thread ]

  5.  
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    jdea, Nov 11th, 2011 @ 11:09am

    Re: Re: More Nina?

    Yeah, that's her. Nina Paley, creator of Sita Sings the Blues and of the Mimi and Eunice comic strip.

     

    reply to this | link to this | view in thread ]

  6.  
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    Anonymous Coward, Nov 11th, 2011 @ 11:24am

    Re: Re: Re: More Nina?

    I like the different - visual approach to making a point.

     

    reply to this | link to this | view in thread ]

  7.  
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    Keith_Emperor_of_Penguins (profile), Nov 11th, 2011 @ 11:26am

    Re: Fighting the Fear of Fair Use

    like being politically correct

     

    reply to this | link to this | view in thread ]

  8.  
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    Scooters (profile), Nov 11th, 2011 @ 11:54am

    Fair Use never lived to be killed off.

    One of the mistakes I see in Fair Use discussions is the belief it actually exists. TD often cites many examples of cases where it's blatantly obvious and lawyers should know better, but it's a misinterpretation of the law.

    Fair Use is made up of guidelines and are not law. In order to determine Fair Use, a civil matter is required. What looks to be "blatant" is far from the truth.

    Have you actually read the guidelines of Fair Use, Nina? Here's your chance:
    1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes

    2. The nature of the copyrighted work

    3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole

    4. The effect of the use upon the potential market for, or value of, the copyrighted work

    Now, I take your works, Sita Sings the Blues, and write up a blog on talking about it and I use the whole movie. You, of course, will allow it to pass (providing my website isn't generating money, right?).

    I take a different movie, let's use a Disney one because they're asshats, and all of a sudden, I'm being sued.

    Why? Because Fair Use isn't a law. It's a guideline. A judge, not you, not Disney, and certainly not me, is going to have to sit and listen to both sides plead their case before making a decision on each and every single civil dispute because Disney is a company run by asshats.

    I still find it ironic someone infringed on Patry's works to include it in a law which is to counter it.

     

    reply to this | link to this | view in thread ]

  9.  
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    Anonymous Coward, Nov 11th, 2011 @ 12:03pm

    Re: Fair Use never lived to be killed off.

    (providing my website isn't generating money, right?).


    actually, i don't think she cares on that either way

     

    reply to this | link to this | view in thread ]

  10.  
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    Anonymous Coward, Nov 11th, 2011 @ 1:03pm

    Re: Re: Fair Use never lived to be killed off.

    Probably not, but that's not the point Scooters was raising.

    In law, the concept of 'Fair Use' is nebulous. It is not clearly defined, and therefore can be a dangerous defense to raise if sued. For this reason, a good lawyer (whose primary motivation is to legally protect his or her client) will recommend licensing material that could potentially have been used under Fair Use. It's safer to license than not and risk a lawsuit from a mega-corp with very deep pockets.

     

    reply to this | link to this | view in thread ]

  11.  
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    RonKaminsky (profile), Nov 12th, 2011 @ 8:46am

    Re: Fair Use never lived to be killed off.

    When the masses were only consumers of content, and copyright was a matter which only concerned commercial businesses, the fact that "fair use" was only a zombie was reasonable.

    Things have changed. A lot.

     

    reply to this | link to this | view in thread ]


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