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Source link: http://archive.mises.org/17395/what-is-fair-use/

What is fair use?

June 23, 2011 by

The answer to the question is so vague that only litigation can answer for sure. Here is a test case for you.

{ 33 comments }

Anti-IP Libertarian June 23, 2011 at 12:58 pm

In Europe there is no “fair use” clause.

“Fair” use is purely subjective…

nate-m June 26, 2011 at 12:22 am

What is and what is not ‘Fair Use’ is purely arbitrary. :)

Just like everything to do with IP it’s completely arbitrary.

What can and cannot be patented: Arbitrary.
What can and cannot be copyrighted: Abritrary
What is the length of time copyrights and patents are valid: Abritrary.

Everything to do with IP is just made up, just pulled out of the air with no real basis. Just whatever committee thought sounded like a good idea at the time.

And everybody since then must obey or be punished. No agreement, no thought, no choice, no conscious. A legal tool for lawyers to screw over companies and for music studios to screw over performance artists.

Right now we have a situation were Google is fighting for it’s life and is willing to pay over a hundred million dollars for patents from a bankrupt and worthless corporation.

Why?

Because they and their partners are being sued left and right for not only creating the most advanced mobile operating system on the planet, being innovative, and competitive… but also for giving it away to the world for free. Just so they can make money in the future from hosting services for free on the internet with targeted advertisements that get used by people with powerful and extremely inexpensive mobile devices.

FCC, FTC, Apple’s patents, Oracle’s patent, and most patent trolls everywhere. All these people are jumping on Google and Google’s partners because they are doing a good job providing cheap services with cheap software on cheap hardware that is better and faster then what was offered before at 4 times the price.

DMCA, ACTA…
These mean the destruction of innovation, harassment of individuals, silence of speech, and retarding the progress of our most critical industries and attempting to destroy the usefulness of the most amazing technical achievements of all of human history for the sake of political agendas and privileged corporate players.

sweatervest June 24, 2011 at 1:23 pm

The example I like to use is a scene from the Simpsons where Homer is being interviewed before going into space and realizes in front of everyone that the “Planet of the Apes” was actually Earth, before preceding to act out Heston’s scene almost exactly as it really was.

The joke was only funny because Homer literally copied all the dialogue, expressions, etc. of Heston. They didn’t create that movie scene, or make it famous. And yet they are profiting from a joke that is only funny by the hard work of other people, and beyond that they actually copied the scene!

Fair use?

Wildberry June 24, 2011 at 2:47 pm

Parody is fair use.

sweatervest June 24, 2011 at 8:32 pm

Okay, well I’m gonna remake a movie scene-for-scene and call it a parody.

Please tell me precisely what the division between parody and remake is.

sweatervest June 24, 2011 at 8:44 pm

Also, as I could have easily guessed, you failed to even begin to address the only relevant question:

*WHY* is parody fair use? Tell me what is fair about recreating someone else’s scene and profiting from it only because it was first made famous by someone else. Why is parody fair use but something else is not fair use?

sweatervest June 24, 2011 at 8:59 pm

Also, this is a clear example of a positive externality that apparently means no movie would ever get made because whenever you make a movie you open up opportunities for people to profit from parodying it.

Wildberry June 24, 2011 at 3:38 pm

Jeff,

This is a great story and thank you for not explicitly pre-judging the “Truth”.

All rules and all laws can become ambiguous at the margins of complicating facts. If this were not the case, we would have fewer disputes and have fewer law suits.

All actions carry some risks. Not all disputes can be cheaply and clearly resolved by the courts (or any other adjudicating authority). One threshold factor is the cost of winning; if it is not worth the cost, it is sometimes more advantages to plead “No Contest”. By the same token, if the cost of bringing suit is not worth it, sometimes it is better to let it go. This has little to do with who would have been vindicated by trial.

Although this case was not settled on legal grounds, it was settled. All sides settled for less than they likely would have wished for. Most cases don’t get to trial for good and practical reasons.

Having said that, this is a close case. I think there is a good chance that he might of prevailed on the fair use defense, but the fact that he settled is in and of itself not an indictment of either IP or the FU doctrine. In retrospect, he would have been better advised to negotiate with the copyright holders in advance, so he could have better assessed whether the project was worth the risk.

The problem with IP, which cannot be solved and should not be solved, is that the interpretation of the rules on the margins can never take place in such a way that disputes will never arise. This is true even in such clear-cut circumstances as homicide cases. The rule is very clear, yet we continue to have trials on the margin of complicating facts. This ongoing refinement of legal rules serves to help prevent future conflicts from arising as the rules are continually adapted to more and more complicating facts at the margins.

Fair use at the very least creates an argument that protections for copyrighted works are not absolute. This promotes the objective that, even in the context of copyrights, the public has a right to access and use within certain boundaries, especially when economic exploitation of the protected work is not the motivation for use.

sweatervest June 24, 2011 at 8:42 pm

“All rules and all laws can become ambiguous at the margins of complicating facts”

No, that’s just true of your rules. :)

Besides, that’s not the point. Fair use is ambiguous no matter how simple the facts may be. If you disagree, then define fair use without taking up a few paragraphs.

“If this were not the case, we would have fewer disputes and have fewer law suits.”

That makes no sense. Disputes and law suits don’t happen because of the ambiguity of the law, they happen because someone unambiguously breaks the law. Ambiguity just makes the court proceedings arbitrary and whimsical.

“All actions carry some risks. Not all disputes can be cheaply and clearly resolved by the courts (or any other adjudicating authority). One threshold factor is the cost of winning; if it is not worth the cost, it is sometimes more advantages to plead “No Contest”. By the same token, if the cost of bringing suit is not worth it, sometimes it is better to let it go. This has little to do with who would have been vindicated by trial.”

Wow, so a trial outcome is justified if you come out profiting from it!?

“The problem with IP, which cannot be solved and should not be solved, is that the interpretation of the rules on the margins can never take place in such a way that disputes will never arise”

And yet you don’t consider that a conclusive defeat of IP, perhaps because you are deeply confused about the rest of property rights and think the same unresolvable ambiguities exist in other places. People can never even be sure they are obeying IP laws. And yet that is not good enough reason to scrap them entirely? To realize that they cause instead of resolving conflicts!?

“This is true even in such clear-cut circumstances as homicide cases. The rule is very clear, yet we continue to have trials on the margin of complicating facts”

This is insane. When are the facts are present, it is clear whether homicide was committed or not. That sometimes all the facts are not present is irrelevant to the fact that homicide is actually well-defined. In the case of IP, even when all the facts are known, even if everyone knows exactly what happened, who did what, etc. it is still ambiguous. That is the problem. Once again you muddle the application of law with what the law is itself.

Murder is well-defined, even if it requires hard-to-get facts to determine whether murder actually happened. Fair use is not well-defined at all.

“This ongoing refinement of legal rules serves to help prevent future conflicts from arising as the rules are continually adapted to more and more complicating facts at the margins.”

No, murder is not redefined based on past court cases. Taking a life is taking a life. Perhaps the sentencing is refined, but that is a completely different issue. Murder means exactly the same thing now it meant a thousand years ago.

“Fair use at the very least creates an argument that protections for copyrighted works are not absolute”

Because if they were they would make any action unjustifiable. It is literally tantamount to realizing the absurdity of copyrights.

“This promotes the objective that, even in the context of copyrights, the public has a right to access and use within certain boundaries, especially when economic exploitation of the protected work is not the motivation for use.”

And why is that objective worth promoting? Why is it not equally worth promoting that the public has a right to economically exploit a published work?

sweatervest June 24, 2011 at 8:50 pm

“When are the facts are present”

When *all* the facts are present.

Wildberry June 24, 2011 at 11:22 pm

The Quotable Mises

Ludwig von Mises: “Private ownership in the means of production is the only necessary condition for the extensive development of the division of labor. The enslavement of the worker was not necessary to create it.” – Socialism

sweatervest June 27, 2011 at 11:09 am

IP is not private ownership of the means of production. Completely off topic and worthless.

Explain what IP has to do with private ownership of productive means.

Wildberry June 24, 2011 at 11:25 pm

Besides, that’s not the point. Fair use is ambiguous no matter how simple the facts may be. If you disagree, then define fair use without taking up a few paragraphs.

Define the doctrine of homicide without taking up a few paragraphs.

Kid Salami June 25, 2011 at 8:07 pm

He is at least consistent. He did once suggest that every contract that hertz has ever made was not valid for not fully detailing what will happen in every possible scenario the driver might find himself in.

http://blog.mises.org/15305/commons-two-kinds/#comment-752268

This would i suspect take more than a few paragraphs.

Wildberry June 25, 2011 at 11:12 pm

Your ability to pull quotes out of past threads is impressive. How do you do that? I remeber the conversation, but am at a loss to locate the exchange I remember.

Kinsella is a master at pulling out his own quotes. There must be a method…

I guessed Sweatervest listened to music with no quiet spots (i.e techno punk or somethig) and he confirmed my suspicion. That is the way he blogs, too.

sweatervest June 27, 2011 at 11:20 am

“I guessed Sweatervest listened to music with no quiet spots (i.e techno punk or somethig) and he confirmed my suspicion. That is the way he blogs, too.”

Haha yes maybe this debate will go better for you if I remain silent.

sweatervest June 27, 2011 at 11:19 am

Whoops, Kid twisted my argument like I knew he would.

My point was that a contract that leaves ambiguities in the terms is impossible to enforce. If it is unclear what terms should be enforced then how could those terms be enforced? That doesn’t mean the term in the contracts cannot be “in these cases a judge in a court will be left with the final decision”, but if the contract does not state what is to be enforced then obviously it cannot be enforced.

Also, that took one short paragraph. To bring that up is sophistical dishonesty, since it should be obvious if you were trying to understand me that the reason I requested a brief response is that Wildberry makes a habit of not answering questions but appearing to have answered them by going off on wild tangents. The obvious point which you failed to address of course is that “fair use” is undefined. It is still undefined.

As usual, Kid drags up something that is entirely off topic to avoid answering the very simple question. What is fair use, other than your arbitrary value judgements?

sweatervest June 27, 2011 at 11:12 am

Killing someone when it is not necessary to save your own life.

Give me a friggin’ break. Now it’s your turn.

Wildberry June 24, 2011 at 11:31 pm

You are predesposed to hyperbole.

This is insane. When [all] the facts are present, it is clear whether homicide was committed or not.

When all the facts are not present, or when facts are disputed, it is not so clear. However ambiguity (lack of bright line distinctions) does not mean a conflict cannot be resolved and justice cannot be served.

sweatervest June 27, 2011 at 11:14 am

“When all the facts are not present, or when facts are disputed, it is not so clear”

Okay. When they are present, it is clear. That is what I said. When it is not clear because of missing facts, what you do is look for the missing facts. What do you do when the law itself is ambiguous? Ask Wildberry I suppose…

“However ambiguity (lack of bright line distinctions) does not mean a conflict cannot be resolved and justice cannot be served.”

That is, again, completely insane. To say that a law does not make definite who is guilty of what, and yet you can serve justice. By what, arbitrarily deciding on who to punish?

sweatervest June 24, 2011 at 8:46 pm

And as usual, Wildberry makes the same tiresome claims he has made for months, I make the same old refutations, and next blog post on IP we’ll be back to square one with Wildberry making the same tiresome claims and me making the same old refutations.

NAPpy June 24, 2011 at 10:10 pm

Sweatervest,

I’ve been lurking on this site and want to make some observations / conclusions that should make you feel better:

1. Ancap arguments start from first principles (NAP, property rights) and move from there.
2. To successfully argue against Ancap arguments require refuting these first principles and then moving to the details of a particular argument.
3. Wildberry and other trolls on this site have never, not once, in months of me lurking, made an argument from first principles or refuted an argument from first principles.
4. I personally started from a pro-ip position and have changed to an anti-ip position due to the strong arguments made by you and others on this site.

Do not despair. Please keep up the good work. I have learned alot from you and I’m sure there are others.

Wildberry June 24, 2011 at 11:20 pm

NAPpy

You have not been paying attention.

NAP turns on rights. My arguments regarding proprety rights have been numerous and detailed.

All ideologies are derived from first principles. I think I have made it clear where I diverge from party-line ancap idology. The only people here who have a doubt about that are those who recognize that I don’t toe the party ancap line. If that is your criticism, well, Duh!

Everyone needs a fan club and you are free to gravitate to wherever you are drawn, but please be a little more careful about who you characterize as a troll, and the accuracy of your criticisms. You are off the mark.

NAPpy June 25, 2011 at 6:53 pm

No, you haven’t made it clear where you deviate from Ancap first principles. That’s what is so frustrating about reading your posts. Just now you read a summary from first principles, and responded by–wait for it–going off on a tangent! Where is your pro-ip summary argument from first principles? You haven’t made one in the months I’ve been lurking, but instead clog threads with pointless, redundant, confused arguments against IP abolition, without ever substituting a claim for them. That is the definition of a troll.

nate-m June 26, 2011 at 12:25 am

He can’t come to terms with the fact that IP rights can only exist in violation of private property rights.

sweatervest June 27, 2011 at 11:40 am

Very well said. The tangents are his main tool. It is a tool of distraction.

Wildberry June 25, 2011 at 11:07 pm

@NAPpy June 25, 2011 at 6:53 pm

Well, if you have been lurking for as long as you say, I think you shold already know.

I do not belive that Ancap is the ultimate logical conclusion of libertarian thought, especially Austrian economics. Ancap is the logical point of arrival for Rothbard and his adherents, which predominates in the leadership of this site.

I agree with many principles that are held in common with Ancaps, such as the desirability of a NAP. Christians refer to this as the Golden Rule, so you can see there is really nothig unique about this.

If you want me to generalize, I disagree that the ultimate destination for society is anthing like Ancap’s vision of no state apparatus whatsoever. By taking this extreem position, and making this a litmus test of “real libertarians”, it makes imposible any distinction between “the State, dripping with evil” and any other form or principle of self-government. If you don’t “hate the state” you cannot be in favor of any libertarian principles. This is a complete fallacy.

NAPpy June 26, 2011 at 4:05 am

Wildberry,

Thanks for the response. I guess definitions are important here. How would you define “self-government”? Does self-government require a monopoly on the initation of force in a given geographic area? I would argue that morality can be derived, law follows from reality, praxeology fleshes out the parameters of conflict minimization and these things are more than enough to use to form self-government. After all, I spent the vast majority of every day self-governing instinctively for 35 years, and only recently learned how to scientifically explain how I cooperated and minimized conflict in all my relationships. At no time did I have to have a monopolistic force initiator tell me what to do.

I do not understand what is “extreme” about this position. I spent years stuck on the minarchist train and always sounded like an idiot when talking with people because my positions were not consistent. Once I learned how the moral dimension could be aligned with economics, I was forced down the rabbit hole in the journey that many here also went through. After all, when is it appropriate to initiate the use of force? When I had that vastly irritating question thrown in my face, I was forced to rethink everything I thought I knew.

I don’t see how the Ancaps on this site can have a “ultimate destination for society”. Afterall, if we followed the NAP anything goes–statist holdovers, communes, confederations, federations, geoist cities, and pure contractual societies could all coexist. Another question thrown in my face–”If I let you do what you want without using force, will you grant me the same privilege”? After swallowing my pride, I could not but answer yes, do what you want.

Believing in the NAP as you do, what do you think is the “ultimate destination for society”?

sweatervest June 27, 2011 at 11:48 am

“I agree with many principles that are held in common with Ancaps, such as the desirability of a NAP”

Another misrepresentation. Ancaps recognize that the NAP is a principle just like the commutativity of addition. If you decide to define addition such that it is not commutative then it won’t work. It won’t actually be addition. Likewise, refusing to acknowledge and act according to the NAP results in failure. Civilization cannot exist where the NAP is not recognized in most interactions. Even in this day of statism most things people do are peaceful and cooperative, and that is the only way any society exists. It’s not about desiring the NAP, it is about recognizing the NAP as the means to the ends achievable only through cooperation.

“If you want me to generalize, I disagree that the ultimate destination for society is anthing like Ancap’s vision of no state apparatus whatsoever.”

As I have already told you and you ignored, no ancap talks about the “ultimate destination” for society. I’m not gonna spoon feed you ancap which you are totally ignorant about. Go read Rothbard, Hoppe or someone else for the love of god.

“By taking this extreem position, and making this a litmus test of “real libertarians””

What do you have to say about so-called “libertarian socialists”? Are they really libertarians? Shall we water down libertarianism until Wildberry is allowed to join the club? I don’t know why you are so bent on calling your own apology for positive law “libertarianism”.

“it makes imposible any distinction between “the State, dripping with evil” and any other form or principle of self-government”

Really? So there’s no distinction between a tax and a bill?

“If you don’t “hate the state” you cannot be in favor of any libertarian principles. This is a complete fallacy.”

Really!? So one can simultaneously hold the NAP while also advocating an institution that, by definition, violates the NAP? Interesting…

sweatervest June 27, 2011 at 11:39 am

“NAP turns on rights. My arguments regarding proprety rights have been numerous and detailed.”

You have never used the non-aggression principle and have denied its status as an axiomatic principle by claiming that property rights are agreed upon. According to you the NAP is only a principle when enough people agree that it is.

“All ideologies are derived from first principles”

I don’t know what you mean by “ideology” except for a theoretical framework, but it is quite possible that theories are not based in principles. Theories always rely on principles but your theory of property rights shifts those principles when needed and correspondingly ends up self-contradictory. Whatever your principles may be they morph constantly into different principles depending on what you are trying to say.

“I think I have made it clear where I diverge from party-line ancap idology.”

You have not at all. You have only succeeded in misrepresenting ancap and then stating that you are not an ancap. Where you break with it I have not seen.

“The only people here who have a doubt about that are those who recognize that I don’t toe the party ancap line”

That plus misrepresenting it is all you have ever said about it. You seem to think expressing that you are not an ancap excuses you from having to refute ancap.

“Everyone needs a fan club and you are free to gravitate to wherever you are drawn, but please be a little more careful about who you characterize as a troll”

You are a troll. How many have said that here, like five different people? Responding to my refutation of your property rights theory with “you’re arrogant cause you think you know stuff” is trolling. We’re not as stupid as you think we are.

“and the accuracy of your criticisms. You are off the mark.”

He is completely on the mark. Especially his response to this post.

sweatervest June 27, 2011 at 11:23 am

Thank you NAPpy. I also started pro-IP and changed my mind after seriously considering the arguments of both sides.

Wildberry June 24, 2011 at 11:33 pm

And as usual, Wildberry makes the same tiresome claims he has made for months,

Not really, but I understand what you mean. You have not been listening to a thing I have said, so it must be very tiresome for you.

sweatervest June 27, 2011 at 11:30 am

“Not really, but I understand what you mean”

Yes really. That’s exactly what it is. I took ample time to fully refute the basis of your position, which is that “property rights are a human device and are whatever people agree they are” and you ignored the whole thing, instead took a single quote out to call me arrogant, and went right back to “property rights are a human device…”

“You have not been listening to a thing I have said”

Yes I’m well aware now that charlatans like yourself take all the appropriate criticisms of themselves and launch them at everyone else before they themselves are called out for it. Care to provide one example of me not listening to you? I just gave an example of you not listening to me.

I have read through every post I have responded to from you. You have no evidence to back up the claim that I am holding this argument back. I just gave an example of you holding it back. I refuted your “property rights are what people agree they are” basis and you ignored it and continued to use that premise. Tell me where I ignored you refuting one of my arguments. One single example anywhere please.

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