Sunday, August 08, 2004

"Fair use! Fair use! My kingdom for a fair use!"

Well, I was looking for something law-related to post about and the first post of interest I ran across was this one over at LawMeme. (By the way, my links section was originally undertaken so that I would have a website from which I could link to the sites I view on a regular basis. Someday soon I will revamp, and add to, that very same currently-unorganized, skulking section.)

Back to the topic. Law. The article discusses a curiously amusing Simpsons anecdote. Apparently the writers couldn't get permission to use the "A Street Car Named Desire" play itself. So, instead they opted to transform their use into a musical production. LawMeme has a few additional links than I do, including this one to a LawMeme story on how Fox (almost) tried to sue itself.

Why do I mention this? Why am I fixated on it (as opposed to "in it" - a.k.a. the typo I just corrected)? Why do I keep asking (or, more precisely, typing) rhetorical questions? Good question, that last one. My vote is for the dramatic effect to which such devices tend to lend themselves. Plus it makes for a more stream-of-consciousness type of writing, something I like to do on more occasions than I should. Hence the wandering about and filler-nature of everything in this paragraph.

The reason I mention this story is because Copyright fair use is a touchy subject these days. From Mattel suing an artist for photographing Barbie dolls in compromising positions (link), e.g. in a blender or a fondue pot, to Fox suing Al Franken over his book title (link), fair use, as it has always been, remains not just controversial but rather litigious, even in our litigiously-minded society.

Some people occasionally, and usually with a sneer on their lips, snidely remark that "fair use is dead" or some other such bunk. I strongly disagree. In this world of intellectual-property-protecting, lawyer-loving, corporate-greed-enhancing, tools-of-the-Devil-using.. corporations, fair use has never been so important and so powerful. My only gripe would be that the defensive nature of its protection, or more plainly the fact that it is only a defense to copyright infringement, tends to favor the copyright holder and encourage more litigation than it could prevent. Maybe the burden could somehow shift such that, perhaps knowing the defendant will claim a fair use exception, the copyright holder must disprove the exception before bringing a valid claim. Yes, this does weaken, ever so slightly, the concrete wall that is one's copyright protection but it would also strengthen the fair use paradigm (ooh! corporate strategy word there, minus one point) and perhaps encourage more fair use and more experimentation. Now I'm not saying all uses should be "fair uses" but I do think that maybe the fair use exception could be shored up a bit in our litigious, copyright-protecting, corporations-on-a-rampage days. Heck, I've no wish to be sued over a use only to have to prove, in court and possibly at my own expense, that my use was a fair use and I am innocent of all charges. (Something I assure you I am most certainly. Innocent of all charges that is. Including the ones about the chipmunks and stuffed porpoises. Perhaps especially the ones involving the woodland creatures. Yes, I definitely didn't do that one, didn't go near it by a long shot, not even within 100 feet or with a ten-foot pole and all that. But ask Bob. He might know something. Not saying that I do. But he might. /End)