It's Fair Use Week! Cartoonist, animator, and activist Nina Paley here to talk about making art and fair use!

has fair use doctrine incorporated new concepts like the internet and podcasts ?

Yes! In a general sense, the idea of having a doctrine is that it should apply to new(er) situations as well. If you look at what it takes for something to be considered fair use under the U.S. Code, it very easily encompasses new technologies even though it doesn't reference them. That's how the Supreme Court, for instance, found that taping TV off the air to watch it later on a video cassette recorder was a fair use, even though VCRs and Betamax machines aren't mentioned in the statute.

And courts have applied fair use to newer developments, too, like search engines and digital indexing. I don't think they've always gotten it right, but the doctrine is alive and well, and at least as healthy as ever.

My guess is that fair use could be a lot wider if people realized it's way narrower than it should be and worked to expand it. There's a tendency to assume that reasonable stuff that should fall under fair use is covered when it's not.

Well, that depends upon who "people" are. If a court thinks fair use is narrow, it will interpret the statute and will have made case law saying that the use it's looking at right then isn't fair. That decision by the court actively narrows fair use.

If a member of congress thinks fair use is narrower than it should be, then maybe they would want to expand it, or other limitations on copyright restrictions. But I think that the number of members who think fair use is too narrow is small, compared to the number who wouldn't want to change it, or who might even want to narrow it further.

Add to this the fact that fair use has been a part of the common law and court interpretations for so long, Congress is unlikely to want to mess with it too much--members know that doing so would invite a firestorm of controversy, and that's probably not what they're looking for right now in copyright law.

Don't mean lawyers or politicians at all, just the folk understanding of fair use among ordinary users/consumers.

Oh, ok. Thing is, I don't want people to retreat from making fair uses. The less people think they can do, the less that many of them (who aren't as bold as Nina) will do. Then those uses won't get tested in court.

Or, if they start clamoring for uses they think should be legal, and they think aren't, the excuse from Congress to do nothing will be, "Don't worry, I'm sure those are fair uses. Get sued and find out."

Do you have a fair use argument for using a track from 2004 on this? I hope so, because it's awesome.

One of my (ever-evolving) personal rules: don't rely upon legal advice you get off of reddit or elsewhere online. The reason you want to talk to a lawyer is so that you can have someone look at all the aspects of your situation and give you good, personalized, confidential advice on moving forward.

I mean, worst case scenario, if the answer is "no, that's infringing!" you don't want the world to see you getting that advice and moving forward anyway.

I get what you're saying. On the other hand - the answer is usually "no, that's infringing!" If someone moves forward anyway, it could be to conscientiously and publicly demonstrate courage. The world should see more people doing that. Civil disobedience, man.

Right--it's a lawyer's job to advise a client about what is likely to happen to them under current law. And if the client wants to move forward, to give advice that best support that client's actions. It's a perfectly legitimate way to move forward and--in some cases--argue for changes in the law.

This is a question for the mods: I've just talked to Nina and she is wondering why she is unable to comment on her own AMA? Apparently she isn't, and wants people to know she is trying!

I think they've got it working now! I'm wiping off beads of sweat as we speak.

Likely she's getting caught in Reddit's spam filter which prevents low karma users from commenting too much. However, the mods can fix it by adding her to the list of approved submitters.

The mods were supposed to have done that since my handle was submitted days ago.

Hi there. I'm the mod who scheduled this AMA.

When you scheduled the AMA, it was assumed that your account would be posting the AMA, since it's your AMA. Thus, as the OP, you wouldn't need flair. However, this was submitted under Sherwin's account so now he's got the OP status, instead of you. That's where the mix-up happened.

We got it resolved fairly quickly, so you should be fine now. Let us know if you have any other issues.

Aha. (this makes it the lawyer's fault, as is so often the case.) Well, thanks for getting this back together quickly.

For Nina and/or Sherwin: What do you think of things like the Copyright Term Extension Act?

The CTEA was a bad, bad idea. We've lost the ability to inject so many works into our culture as a result of it--for an even smaller benefit overall to the few works that are going commercially exploited since.

What other "things like" it are you asking about? I have mini-rants on tap in my head for a wide variety of copyright law proposals.

Anything regarding extending copyrights or the DMCA, and what negative affects these have on content providers I'm curious to hear your thoughts about, so by all means feel free to share your thoughts!

With regards to the Copyright Term Extension Act in particular, (AKA the Mickey Mouse Protection Act), if this act wasn't passed are there benefits that corporations like Disney could have had?

From my perspective, Disney could have had some benefits itself--being able to make Disney versions of works that would otherwise have been in the public domain without having to get permission would have helped them.

Of course, Disney is hurt less than a smaller creator, since it can afford to cough up licensing fees that others can't.

But it's also important to remember that the costs aren't just monetary; they're in terms of what we lose as a culture when we create more costs and frictions to building upon existing culture.

As for the DMCA, there's several parts to it; the two that people talk about the most are the notice-and-takedown provisions in section 512, and the anti-circumvention provisions in section 1201.

The notice-and-takedown system has a lot of problems, but is based on a good idea: that someone hosting users' content isn't responsible for their uploading infringing stuff, as long as the host didn't know it was infringing, and as long as, once they get a proper notice of infringement, they take it down.

In practice, it's become a bit of a mess. It's complicated for both takedown-senders and uploaders to use, sometimes, and we see all sorts of abusive takedown notices that get sent for non-copyright purposes--just to stifle someone's speech.

Beyond that, though, we still see people pushing for even more stringent takedown procedures--like requiring hosts to filter for possibly infringing materials. And that leads to even more problems. The funny thing about that is that a lot of takedown systems actually exist outside of the DMCA as well, meaning that the few protections the law gives for uploading users are often absent from those voluntary systems.

As for anti-circumvention, I primarily worry that it can be used to extend copyright-style restrictions on uses that shouldn't be controlled by copyright law--like making DVD ripping illegal, even when the ripping itself is a fair use.

What film most deserves to have already entered the public domain? There are so many out there, between the ones like Metropolis and The Third Man whose copyrights were directly restored by the Uruguay Round Agreements Act, those which would have become public domain but for copyrights on underlying elements like music and screenplay, and those which were simply Mickey Moused out of upcoming expiration dates.

Films? I dunno. But I kind of want to see Bond novels hit the public domain. They hit the same sort of pulpy serial notes that Sherlock Holmes does, with a main character that's a bit of a blank and an obsessive fanbase ready to recharacterize, criticize, and recontextualize.

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Yeah. I've tried to contact mods, but am not getting a response for now.

In the meantime, We can migrate over to Twitter: Nina is @ninapaley

I replied to Nina on Twitter about her issues posting. It has nothing to do with reddit thinking her account is trolling or spam, they just automatically put that strict wait-many-minutes-to-post flood control for comments on any new account. Even Edward Snowden got flood-controlled! It sucks, but it's nothing personal.

After I started commenting a bit, the flood control just went away for me. Can other redditors confirm that's how it is for them, and clarify how many comments it takes (I'm unsure of how many but it wasn't a daunting amount)?

Thanks! Looks like we're off and running again.