A few weeks back, we wrote about Andy Baio’s excellent video concerning the limits of fair use, in particular his awful and soul-wrenching experience being sued for infringement in a situation that was almost certainly fair use. Baio eventually settled for $32,000 rather than deal with a long and expensive trial that might end poorly. Baio points out that even when we have fair use, the fact that you can still be sued and can still have to fight your way through the court system is incredibly scary, and creates a chilling effect on creativity.

Following that, Pat Aufderheide, one of the world’s foremost experts on fair use, and someone we’ve discussed before, wrote a response to Andy’s presentation challenging some of the claims he made, and arguing that people need to strongly exercise their fair use rights and that we shouldn’t be fearful of such lawsuits. Aufderheide, along with Peter Jaszi, have been creating “best practice” guides in fair use for creators to rely on, hoping that having some clear and accepted guidelines will help creators more confidently express and use their fair use rights.

What happened to Andy Baio is creepy. But Andy inadvertently is making things even worse. He generalizes dangerously from his experience, and spreads wild and false charges in the last part of his presentation. The chilling effects of his talk could be considerable.

He claims, astonishingly, that “fair use is not a law.” Uh, it’s section 107 of the Copyright Act. Like other parts of the law that protect free expression, it is applied by courts case by case; you exercise it in context, and courts take that context into account.  That doesn’t make it “not a law,” nor does it make it impossible to apply. Creative people make judgments all the time about whether our works are obscene, libelous or treasonous, for example; there are no bright lines there, either, but we act with confidence, knowing the law is on our side.

True and False.

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.

When two people who I normally agree with are in disagreement with each other, I sit up and take careful notice. It surprised me at first to see these two clear supporters of remix culture and of fair use disagreeing so vehemently with each other. I think they both make points that are correct, as well as points that are exaggerated for effect. I think that the two would actually agree more than they disagree, and the disagreements are much more in the margin than is implied above.

While Aufderheide is correct that there are lots of things that people can sue you over, those kinds of lawsuits are not the same as what Baio was talking about, in a few ways. First, the statutory damages associated with copyright are so out of line with any potential harm created by the situations that Baio is talking about. If the requirement involved some showing of actual damages and/or much lower statutory damages, I would be more inclined to agree with Aufderheide on this point. Second, while she is correct that fair use has been “riding high” in a number of court cases lately, that is not always the case. Fair use determinations by courts quite frequently have the appearance of arbitrariness. I’ve seen copyright lawyers note that it is possible to make the four factors test in fair use come out on either side in almost any case if you really want to. That uncertainty and that risk is a concern.

I applaud, wholeheartedly, Aufderheide and Jaszi’s tireless work at reducing that uncertainty with their attempts to “reclaim fair use.” And I hope that one day, the uncertainty will be greatly minimized. But we really are just not there yet. Baio’s case is hardly an outlier.

As for Baio’s claim about fair use and the law, he was making an inexact statement that within the context did, in fact, make sense. Yes, fair use is a part of the law, but copyright maximalists, and some courts, have treated it merely as a defense, rather than a direct right. This is almost certainly a misreading of the law, because the law states clearly that a fair use is not an infringement (“the fair use of a copyrighted work… is not an infringement of copyright”) but if fair use is merely a defense than there would have to first be infringement. So, clearly the courts have misread the law there. However, Baio’s statement was about the practical reality of this, in that in order for him to plead fair use, he effectively has to go through a full legal process, which is timely, costly and risky.

I agree that we need to “reclaim” fair use and that one way to do this is to continue to exercise those rights. But I don’t think it’s right to suggest that relying on fair use is a guaranteed safe place under the interpretations of the law today. Should it be? Yes. Should we strive to drive the law and the judicial decisions in a way that establishes a clear safe place for fair use to occur? Absolutely. And while Aufderheide and Jaszi have done incredible work on that front, the points Baio made still ring true for the vast majority of people who might face the threat of a copyright infringement case concerning a fair use remix, or another transformation of a copyright-covered work.

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