Lat-itude for Fair Use?

By now the Nixon-Peabody theme song is all over the blogosphere. Denise Howell chronicles the epic here; to abridge:

1. Law firm commissions song.

2. Song is silly (think “Up With People” meets Sheena Easton meets B of A’s version of U2’s One).

3. Song is leaked on YouTube.

4. Dave Lat of ATL mocks it.

5. YouTube blocks it.

6. Lat hosts it on his own site.

As a legal matter, Lat’s defiance is interesting because it highlights a key weakness in the legal regime designed to immunize ISPs (and intermediaries like YouTube). It’s easy for any copyright owner to bluff YouTube into taking down a video of IP it claims to own–even if the video is clearly fair use. That’s one reason why Professor Malla Pollack wrote what has to be one of the best-titled articles of the year: “Rebalancing Section 512 to Protect Fair Users from Herds of Mice-Trampling Elephants, or a Little Due Process Is Not Such a Dangerous Thing.” (PS: Don’t miss Pollack’s exceptional work on the First Amendment, either!)

Of course, given industry capture of the Copyright Office and the relevant committees on Capitol Hill, it’s not likely you’ll see reforms like Pollack’s adopted anytime soon. In the meantime, someone like Lat might be characterized as a fair use enabler. I don’t know if he’d win a fair use claim in court, because even though he commented humorously and incisively on the song in question, a skeptical court might respond that he didn’t need to put the whole song up in order to do so. However, he may well have provided the raw material necessary for anyone to make an unmistakably fair use of the material. The song almost certainly would not have been licensed by Nixon Peabody–so where could they turn but the blawgosphere’s Walter Winchell?)

Dan Burk and Julie Cohen realized long ago that a “fair use infrastructure” would be needed as law & technology enhance owners’ control over works. It looks like bloggers, instead of government, will be the ones providing it.

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