Apr 27, 2005

Just returned from a Siva Vaidhyanathan lecture at the Supreme Court on Fair Use. He spoke eloquently as always, and I definitely learned a few things. He spoke of the strength of the fair use doctrine at law and as an affirmative defense, but that it was very weak as a daily negotiation in getting new works that use copyrighted works published. He argued this is mostly because of its vagueness and that publishers and investors are easily spooked and don't want to risk litigation.

I raised my hand to ask a couple of questions during the lecture, but unfortunately wasn't called upon. He cited a few cases to back up his claim that fair use is strong in case law, so I wanted to ask him how the Bridgeport v. Dimension Films ruling (where the court said that the de minimus doctrine doesn't exist with respect to music sampling) fits into the equation. It seems to me that this is a setback for the strength of fair use at least in the music industry, and if upheld, it will eradicate all uncleared sampling.

The other question I wanted to ask was what he thought of the Copyright Office's recent opening up the Orphan Works dilemma. Will categorizing and licensing orphan works strengthen user rights under fair use? What about out of print works?

I had to run out in order to tend to a sick dog, so I wasn't able to corner Siva after the lecture, but I'll try to phone or email him in the next day to get his take...

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