Fair Use Is Not an Exception to Copyright, It’s Essential to Copyright

AKA "The Mickey Mouse Curve" - easily searchable for a visual reference point. I completely agree "Be prepared" is important not only for the arts, but for technology. The fact that people can be subjected to breathalyzer evidence but that code can not be revealed due to "copyright and trade secret protections" is a foul twisting of US law. Is it on the level with SOPA and Net Neutrality? Not quite, but we all should definitely be aware of the implications and...to be frank...monied stakeholders who want to buy laws they like...

Those extensions are known as the "Mickey Mouse protection act," since more or less their sole purpose is to ensure that Mickey never enters the public domain.

Changes to copyright law are probably more likely to pass Congress as part of international trade agreements these days, rather than as stand-alone bills.

It's too bad librians couldn't muster the mettle to pull a DMCA type of user-based accountability. I'm serious about this, as Fair Use does have significant implications when performed in an institutional setting, but by the use of individuals, it becomes much more easy to circumnavigate. One of the greatest misconceptions is the extent to which Fair Use applies - showing an entire video? That's not Fair Use except perhaps in a Film Studies class by a vetted Professor. Showing a snippet of a video as a point within a broader presentation or lesson? That's the goal of Fair Use.

Showing videos as a general rule is a Performance Right issue, not Fair Use. The DMVs in my part of the world routinely broke the law by showing Disney VHS tapes in the lobby. I'm talking for years, not just an isolated incident. That's not a Fair Use issue in the least, and lawyers, with respect to the law, could reasonably pursue compensation.

Are you familiar with "independent coffee shops" coming under fire from ASCAP for hosting open mic nights and/or playing AM/FM/XM/Internet Radio without paying official dues? The poor widdle coffee shop owners claimed it was extortion, or they tried to muddy the water with some kind of Fair Use claim, but they didn't have a case and I have to admit that ASCAP was abiding by their legal rights. Now, coffee shops are more diligent in telling people to play originals, not cover songs.

Overall, my point is that Fair Use is so utterly abused as an argument by people who don't understand Copyright, Performance, and other nuances of (wholly butchered / Disney-lobbied) legal channels that it genuinely hurts those who understand the concept. I routinely have to counter the argument that Weird Al is an example of Fair Use (as a general principle of using other people's music) because it's a very specific issue that he is legally allowed to do - Parody. Showing Bambi or non-Public Domain documentaries in the lobby of your library isn't Parody, nor should it be argued that way. Besides, if librarians can't find enough Public Domain content or educate students enough to assist them researching a project, then the job is effectively wasted space, and should be tossed out of conversation with respect to utility and necessity.

Why do you think the Fair Use section is so poorly written? I'm inclined to agree with you that it doesn't provide as much protection as some people might think, but I don't know about "zero" protection.

I agree; I was hoping for a more cogent explanation, but the whole time-shifting concept with respect to Fair Use is...weird? It's more of a "Terms of Service" type of issue, from my perspective, in that paying for the service should carry with it certain reasonable rights. It's not exactly a "transformative" notion from my perspective, but honestly, the courts have been so all over the map of reasoning that it takes me a while to figure out the logic. Sometimes, when I do figure it out, I get really, really mad with flashbacks to the crux of the Napster case which ruled "A home computer is not an audio device and therefore person-to-person sharing of audio copies as Fair Use does not apply" (paraphrased) and is so utterly shitty and wrong it has led us down the DRM wormhole.

At least Eminem successfully sued for his 50% cut. For those unfamiliar, the jist of the story is Eminem's label told users they were 'leasing' a song, which entailed a 50% royalty rate to Eminem, but they accounted each lease as a 'sale' and paid him closer to 20%...which was in violation of his contract. He sued, he won, and it's a thorn in the industry's side to this day. I blame the greed of "having our cake and eating it too" and the outcome pleased me on both fronts as an artist and paying consumer.

As an IP lawyer, i can tell you that you will never get a definitive answer, and it's pretty sure all you will do is waste money.

Fair use is a mixed question of law and fact, and the fact issues will go to a jury (and in some cases, the judge will send it all to the jury). Without an actual trial, it's really hard to say what is fair use, unless what you are doing is something identical to say, an existing supreme court ruling :)

Lawyers are very good at identifying threats, but they will never offer you much assurance about an issue as subjective as fair use. There's always some speculative danger they can see that's technically, though maybe not realistically, justified.

What you can do is ask a lawyer if your idea is obviously not fair use and you'll get a straight answer. But you're not going to find someone who is going to say to you "yes, this is fine" because the law covering fair use is so vague. Laywers need to protect themselves when giving legal advice.

I'd recommend reading up on fair use and using your own brain. Case law is especially useful, i.e. many fair use cases regarding software have been to the supreme court - if you find a ruling covering something similar to your project then that is a good sign - Wikipedia and Google News are your friends.