What happened to Waxy was terrible, but fair use works better than he thinks it does

Earlier this week, I blogged Andy "Waxy" Baio's speech on fair use, called "The New Prohibition." Andy got hit with a legal threat for making a limited edition 8-bit remix of a famous photo and ended up paying $35,000 to settle the claim, even though he thought he had fair use on his side. As Andy explained, he thought that winning the court case would cost so much that it was cheaper to lose for a mere $35k.

But as Pat Aufderheide from American University's Center for Social Media writes, "Andy Baio's a brilliant geek, and an artist, but I'm afraid he's inadvertantly generating a chilling effect all his own, with fair use misinformation. Ouch! Here's why."

Andy warns ominously that “anyone can sue you for anything, always, and even without grounds.” Yup. That is true, and just as true for obscenity, libel, or treason charges, and in a million other places in life. If someone slips on the sidewalk in front of your house after a snowstorm, or chokes on an appetizer at your dinner party, or objects to your choice of lawn furniture, they can sue you. Copyright trolls like Prenda are suing people who have done nothing at all. But we somehow conduct our lives and even have dinner parties knowing this ugly reality.

He warns fellow remixers everywhere, “fair use will not save you,” and “nothing you have ever made is fair use.” Whoa. Neither of these statements is true.

Fair use is riding high in the courts. The fair uses of "Jersey Boys," who used clips from "The Ed Sullivan Show," were forcefully vindicated just a few weeks ago, and the litigious rightsholders were ordered to pay the defendants’ costs and fees. Georgia State University successfully defended a copyright lawsuit brought by greedy publishers, and got a court order for the publishers to pay over $3 million in attorneys’ fees and costs. Fair use even saved Luther Campbell, aka Luke Skywalker from 2Live Crew, when the Supreme Court held that Campbell could sample all of Roy Orbison’s “Oh, Pretty Woman” for use in a parody song.

But mostly fair use just gets used without a darn thing happening. Virtually everything you have ever made—including Andy’s own video presentation (check out the “Harlem Shake” clips!)--employs fair use. Fair use is practiced so routinely that it’s a nearly invisible part of our daily life. Every front-page newspaper article; every student paper with a footnote in it; every newscast is laced with fair use, and nobody is suing for the millions of fair uses every day of others’ copyrighted material. Fair use lawsuits in fact are extremely rare, and vanishingly rare in comparison with the ubiquitous practice of fair use. Even cease-and-desist letters are extraordinarily rare.

Pat's piece goes on to give a lot of chapter-and-verse on the ins and outs of the current fair use landscape.

Fair Use Fearmongering, from Friends? (Thanks, Pat!)

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