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July 11, 2004
Fair Use It or Lose It, Part II
Larry Lessig has a must-read post that touches upon on a topic many of us been discussing of late: strategies for preserving fair use.
The story so far: film maker Robert Greenwald has been making a political documentary about Fox News -- you know, the news organization that brought us that especially ill-advised trademark lawsuit against Al Franken. Greenwald, who uses numerous clips from Fox News in order to criticize its reporting, was more than a little concerned that the company would take a similar stance toward his film. Larry and the good folks at Stanford's Center for Internet & Society joined Fenwick & West in offering him pro bono legal advice in order to ensure that the film would be completed. Now, Robert Boynton -- the gentleman who brought us the excellent NYT Magazine article, The Tyranny of Copyright -- has published the equally excellent How to Make a Guerilla Documentary, detailing precisely how hard that row has been to hoe.
Where will the story go next? Despite early indications to the contrary, there's a possibility that Fox will still sue.
Larry's post subtly suggests that a lawsuit might not be such a bad result. "As with news-gathering, critical political filmmaking needs a buffer zone of protection against the overreaching of the law. And if the potential of this medium -- now liberated by digital technology -- is to be realized, we need clear precedents that establish that critics have the freedom to criticize without having to hire a lawyer first."
In other words, if Fox sues, a court would have the opportunity to create meaningful breathing space for this kind of speech -- buttressing the (fragile) fair-use defense of future Robert Greenwalds/Michael Moores.
The unstoppable Ernest Miller has already posted a response that takes the thinking a step further. "[Why] use copyright law if there are other means to prevent the making of these sorts of films?" he asks, pointing out that with the broadcast flag mandate in force, "using such clips [would be] significantly more difficult (and expensive)." On the other hand, if a film does get made, there are plenty of avenues for distribution that bypass the traditional points of control -- e.g., "broadcatching." The law is only one front in the battle for fair use.
Where does this leave the average copyfighter looking to support fair use and the freedoms it allows? Two suggestions:
- Forward and/or link to Boynton's piece. It's one of the better articles for articulating the connection between fair use, the First Amendment, and a functioning democracy.
- As Larry advises, see the film. Encourage others to see it. If more of us don't practice/experience/celebrate our "particularly American" freedoms, we won't notice when they finally slip out of our grasp.
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