The Industry Standard - Is Fair Use decided by who has the most money? - Comments

Just as quick responses to

Peter Mezei — Tue, 14 Oct 2008 04:01:55 -0700

Just as quick responses to Mr. Booth and Mr. Hall:
Although the Constitution doesn't contain the fair use doctrine explicitly in the "IP clause", the courts of the US developed - through a 150 years lond period - the doctrine from the words: "promote the progress". Just check the decison of Justice Story in Folsom v. Marsh and the recent court decisions.
Because of this, on the other hand, the fair use doctrine doesn't originate from the First Amendment. If court decide to use the free speech rules, they do it in the inquiry of the four statutory factors.
By the way, I am happy to see that courts know the right interpretation of the §107!

Felix, even Creative Commons

Cyndy Aleo-Carreira509894 — Thu, 09 Oct 2008 17:29:18 -0700

Jeff, thank you for looking up the text for me and saving me some time. :)

Fair use rights originate in

Jeff A. Hall — Thu, 09 Oct 2008 16:09:03 -0700

Fair use rights originate in the 1st Amendment, not Art 1. Sec. 8. Cl. 8 (aka "the copyright clause"). The 1st Amendment acts as a limitation on the scope of the restrictions on speech that can be granted under the copyright clause. This is precisely why the exact line at where fair use ends and infringement begins is hard to define. For example, it seems clear that you cannot use a copyright granted by the government to prevent others from criticizing or parodying your work. If the various Copyright Acts were read that broadly, they would become a law "abridging the freedom of speech" and therefore unconstitutional.

Of course given the broad modern interpretation of the commerce clause (Art. 1, Sec. 8, Cl. 3) it is doubtful that we even need the copyright clause anymore. Congress could legislate copyright, trademark, and patent protections just as easily under that clause. Actually, if I recall correctly two different drafts of the DMCA listed two different clauses as the basis of the Congressional authority. One listed the commerce clause, one listed the copyright clause, and in the final version no specific grant of congressional authority is cited.

I do not know how Cyndy

Donald E Booth — Thu, 09 Oct 2008 13:50:54 -0700

I do not know how Cyndy Aleo-Carreira can state that Fair Use is guaranteed
by the Constitution. I read the Constitution to say in Article I Section 8

"To promote the progress of science and useful arts, by securing for

limited times to authors and inventors the exclusive right to their

respective writings and discoveries"

I do not see anything about fair use in this clause. But I do see a problem with
the constant redefinition by congress of "limited times" to mean anything from
1923 till present is covered. A patent is only good for twenty years. Why should
John Lennon's recording was done in the 1970's still be protected when it is
almost forty years old. In addition in this case the author is even around for
congress to secure the his exclusive rights to the song.

Long live Creative Commons,

Felix Pleşoianu — Thu, 09 Oct 2008 06:28:46 -0700

Long live Creative Commons, I guess. Heck, maybe people should start boycotting any intellectual creation that isn't under an open license. I already do that for the most part.

Is Fair Use decided by who has the most money?

Cyndy Aleo-Carreira — Tue, 07 Oct 2008 18:03:06 -0700

Anthony Falzone, Executive Director of the Fair Use Project, was involved in the defense of the suit brought by Yoko Ono and EMI Records over the use of John Lennon's Imagine in Ben Stein's documentary film Expelled: No Intelligence Allowed. As a result of his involvement in the suit, defending the filmmakers pro bono alongside the producers' lawyers, he came to a frightening conclusion: fair use is guaranteed under U.S. copyright law, but it's becoming too expensive to actually take advantage of what is supposed to be a guaranteed right.

As Falzone points out, the film's producers were able to take advantage of the Documentary Film Program, which provides Media Professional Insurance and the availability of legal vetting of fair use of media before a movie is released. Even with that vetting, however, Ono and EMI sued over a 15-second section of a song used in a documentary, and the DVD version of the film was released without that section because of the pending lawsuit. If a film with Hollywood producers has trouble using media clips, what hope does an average citizen have of using something without worrying about huge legal expenses that could result?

This year has seen an alarming amount of debate over what constitutes fair use, from the AP's issues with The Drudge Retort to concerns about erosion of fair use as part of the proposed ACTA legislation. Legal protection is nothing but words on paper if the de facto law is that whoever has the most money decides what constitutes fair use.