How 'Playing It Safe' Cripples Fair Use

from the limping-layer-of-pointlessness dept

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.

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Comments on “How 'Playing It Safe' Cripples Fair Use”

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Pat Aufderheide (profile) says:

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.

Scooters (profile) says:

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.

Anonymous Coward says:

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.

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