The Fair usage of Fair Use

The Lane Hartwell / Richter Scales thingy rumbles on....a Hartwell friend and lawyer (Jason Schultz) has now weighed in with an opinion, which is that it may have been uncouth to not credit her, but it was OTT to take the video down and probably would not stand in court.

The issue hopefully can therefore move on to discussing the general case, ie, as Jason says:

If we, as an online society, want people like Lane to succeed in their work, to be successful and profitable photographers, we need to take care to promote them in a way that feels respectful and supportive. We need to make sure they succeed so that they will continue to provide us with amazing photos and make them available online. Equally, if we want people like TRS to be able to make funny videos about the Bubble quickly and easily so everyone online can enjoy them, we must take care to allow creative uses of material without imposing draconian requirements before publication.

He goes on to think about how the creative commons might create common wealth:

However, for me, the idea of attribution and promotion have strong appeal. They respect who the artist is and try to help them thrive in their work. I also think ethical online users should consider tithing any financial gain from the use of other people's works back to the original creator -- in essence voluntarily offer to post-date royalties if the project amounts to anything profitable. Such steps would, IMO, go a long way to building a stronger online creative community rather than tearing it down or apart.

I agree with this idea, but I also think there needs to be a materiality test, as in practice this can be unworkable - the issue is where does accreditation stop, at what level of minority rightsholder?. I have worked with content rights over the last 10 years, and nothing mires a production down in treacle and pushes up costs like having to deal with minority rights holders, especially if they have veto powers, which a takedown essentially is.

This is why I am so against the outcome here - a commodity good (a photo of someone else that could have been obtained from a number of sources), used in a collage with a whole lot of similar, can be used to take down an entire piece of creative media.

I think there have to be some tests for what sort of media can qualify for takedown, as Fair Use is not a given, the takedown occurs first (it's automatic) and then the defendent has to go to the cost and effort (and lost value) of proving Fair Use applies - thus the game is distorted to the complainant, no matter how material the piece of IP at issue.

Also, as Kathy Sierra noted, the current interpretation of Fair Use rewards parody but does make it very hard to engage in positive building of new content.

There is also a misconception re Copyright law - it is not designed to give the creator total rights over distribution, as that would stifle all future innovation, it is designed to balance old creation with new.

Thus there comes a time to draw a line that says "this is not a material piece of IP" when new takedown requests occur, and I would argue that a photo of a commodity good that is in the public domain (loads of other photos are available), that constitutes less than 1% of the media being taken down is not material and thus should not qualify for takedown. Failure to do this will lead to increasingly frivolous examples, that can be done at little cost to the complainant and great risk to the media creator.