"Universal: Fair use is still infringing" on arstechnica.com
(Notice the statement: "... no one knows if the use is fair until a judge actually rules")
"The next day Moses sat as judge for the people, while the people stood around him from morning until evening. When Moses' father-in-law saw all that he was doing for the people, he said, 'What is this that you are doing for the people? Why do you sit alone, while all the people stand around you from morning until evening?' Moses said to his father-in-law, 'Because the people come to me to inquire of God. When they have a dispute, they come to me and I decide between one person and another, and I make known to them the statutes and instructions of God.' Moses father-in-law said to him, 'What you are doing is not good. You will surely wear yourself out, both you and these people with you. For the task is too heavy for you; you cannot do it alone." Exodus 18:13-18
So a mom sees her child dancing a silly dance to an old Prince song she was listening to. She videotapes it (many parents would) and puts the video up on YouTube so others can laugh about it. Next thing you know, some huge studio mails her a legal warning that if she doesn't take the video down, she could face stiff penalties. Why? Because the studio didn't give her permission to use the song in the video.
First off, I think Universal is kind of missing the point. I think most people who were watching the video were watching the child dancing, not to hear the Prince song. It is not as if the mom edited the song into the movie. It was playing in the background. Can we loosen up just a little?
Now, I understand that the mom put this up on the Internet where everybody could look at it, which gets to all that fine print before sporting events and in your CD case about not rebroadcasting or retransmitting without express written consent from Major League Baseball (or whoever). From what I understand, when one purchases a CD, one has the ability to make "fair use" of the music without repercussions. So, for instance, you can make a copy of that CD for yourself in case the original is damaged. What jumped out to me as I read the story about this mom and Universal was the comment by the story's author that no one knows if the use is fair until a judge rules.
As soon as I read this, I thought of Moses sitting there, everyday, while the people of Israel brought to him their disputes for him to settle. Jethro comes along and says, "What you are doing is not good. You will surely wear yourself out, both you and these people with you." I wonder if Jethro would have the same observation today about a legal system that is being asked to determine whether or not it is fair use for a mom to post on the Internet a home video of her child dancing to a Prince song. Is this really what our judges should be concerned with?
Jethro's solution to Moses was that Moses should appoint other judges to help him with the smaller issues and bring to Moses only the really important cases. As our technology changes, maybe it is time for our legal system to begin to change as well. If these kind of issues are going to have to be settled by legal means, then there should be an established system for separating out the small stuff (moms shooting home movies) from the bigger issues (people selling pirated copies of movies and software for profit). That way, you take the big, scary stick out of the studio's hands where it is not needed, and you better educate the public on policy.
Or maybe we should all learn to chill out, use some common sense, and just be able to laugh at a child's silly dance.