Strong opinions, weakly held

The limited practical applications of fair use

Andy Baio explains how he got sued by the photographer who took the iconic cover photo of Miles Davis’ album Kind of Blue after he used a pixellated version on the cover of a CD he produced. He felt he had a good defense under the principle of fair use, but in practical terms, that doesn’t matter:

Anyone can file a lawsuit and the costs of defending yourself against a claim are high, regardless of how strong your case is. Combined with vague standards, the result is a chilling effect for every independent artist hoping to build upon or reference copyrighted works.

Here’s what the Constitution says about intellectual property:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

I think it makes sense to look at every intellectual property law and court case with this test in mind: does the statute promote the progress of art or science? I think it’s tough to argue that Andy Baio paying damages to the photographer in this case passes that test.

In related news, the Patent Office is considering changing the rules so that the first person to attempt to patent an invention will have priority in the process over the first person to actually create the invention in question. This is great news for patent trolls and big companies, but it doesn’t even come close to passing the Constitutional test.

Update: Here’s another example. Apple (and many other companies) apply for tons of patents, many of which never make it into products at all. Does an invention that is never turned into a product promote the progress of science or the useful arts? I would argue it does not.

1 Comment

  1. “securing for limited Times”

    LOL! This has been effectively legislated out of the constitution and the Supreme Court has gone along with the farce in Eldred v. Ashcroft. They all but said if Congress extended them for a million years, that’s ok because that’s still for a limited (although very long) time…and it’s doubly good if that’s just harmonizing US law with European law.

    Don’t even get me started on useless patents and patent trolls. Despite our other political differences, I imagine patent and copyright law is one area we likely very much agree on.

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