[Comedies of Fair Use] What is to be done?

Andrew Raff
May 4, 2006

Here are rough notes from the Comedies of Fair Use at NYU panel "What Is To Be Done?" (4/30) with Judge Kozinski, Pat Aufderhide, Susan Bielstein, Carrie McLaren, Lawrence Weschler (moderator)

Pat Aufderhide
Although there is a lot of confusion, there are a lot of healthy practices.

Carrie McLaren
Solutions sound scary because one solution has to be all-encompassing. Possible to get things done on a smaller scale, both within the system and outside the system.

Negative publicity is an incredibly powerful tool.

Receiving a C&D can be used as PR.

Significant power of distribution networks

Susan Bielstein
-Book includes the cost of each clearance in caption, this may end up that license contracts include non-disclosure as to price.
-We need a central repository of copyright misuse [again, link to mazzone]
-We need education from attorneys on publishing houses rights& permissions staff [here's another non-profit type idea]

we will make a greater commons when we assert the commons. We will have more fair use and free use when we hold these truths to be self-evidence. This has more to do with changing norms than changing the law.

There are not enough fair use cases. Kozinski can probably name 3/4 off the top of his head.
There are lots of cases that get litigated in the first Amendment area, e.g. Nazis in Skokie.
Too often, these cases arise in a business situation, and you need to make a business decision.
Authors/publishers need to think of themselves more as a public trust and there's something to be said for not backing down.
sometimes you litigate not because it's the right business thing to do, but it's the right thing to do.
these are not just artistic issues, there is a serious undertone of political discourse. Almost all art has a political undertone and everything having to do with expression has a serious political undertone.
What do you remember from 1984-- where's the beef-- which was based on a tm.
Trademarks are a more important area in terms of political discourse than (c) for two reasons
1. While on rare occasions books may be widely read commercials get pushed at us with a high-powered hose. [they're in the public consciousness]
Example: The word Olympics is owned by the USOC. The USOC gave permission to the Special Olympics, dog Olympics, but not the gay olympics.
-If you take words out of the political discourse, you hurt the discourse.
-Mattel v. MCA -- another attempt to pull a word out of the discourse for the purpose of avoiding a message that has definite political undertone

Weschler: To what extent do people who keep sending C&D letters but don't sue, does that set up a process where those letters can be safely ignored?

Kozinski: There are many reasons why rightsholders fail to sue. They are very well aware of the publicity risks of suing.

Audience member: Does undue diligence - failure to protect copyrights - have legal standing?

Kozinski: getting an injunction is an equitable remedy. With equity, laches and estoppel come into play.

Bielstein: content providers often don't want to go to court because they don't want more fair use decisions. They don't want a lot of case law that takes the law towards the defendant.

FEPP is offering pro bono services for recipients of C&D

Marjorie heinz from FEPP: DMCA takedown notices are more effective than C&D letters.
Best practices policies attempt to reduce fair use to numbers. It's not the outer boundary-- it's relatively conservative.

Best practices for documentary filmmakers is what do (c) owners and practioners deblieve to be fair.

Common law system flexibility is good for free speech. A system that looks at set rules-- number of words-- [technical] must be avoided. Chaos has its own benefits, chaos has its own flexibility and chaos allows you to develop quickly in a world that is changing.

Some changes to consider:
Do away with injunctions in most cases where the issue is transformative use. Any kind of use that adds value, changes value, essentially becomes a derivative work, injunctions should be highly disfavored. Exempt entirely anything non-commercial in nature from injunction. Try to avoid making kids feel guilty about sampling, so long as they are not making money on it.

Examples of problem of unavailability/out of print problem. Would be glad to buy it and pay for it if it was available. But here, infringement keeps cultural property in circulation.

Those who assert rights needs to be more assertive. lawyers represent pro bono the cases of those who can't afford lawyers. This is another area of civil liberties and the civil liberties lawyers ought to understand it and it affects us more than whether the Nazis can march in the streets of Skokie. This affects most people's rights and ought to be viewed more as a civil liberties issue.

We're talking about expression, the very stuff which the First Amendment is made.


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