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Lines Between Fair Use And Copyright Theft Blurry

'The Daily Show With Jon Stewart'
'The Daily Show With Jon Stewart'

Every time you listen to your iPod, use your TiVo or watch Jon Stewart on TV, you're participating in something called "fair use."

It's the idea that artists, filmmakers, reporters and commentators have the right to take copyrighted material without permission or payment, as long as they're using those materials to make something new.

While Hollywood studios and the recording industry have spent millions of dollars making their position on copyright infringement abundantly clear, fair use advocates have a tougher time getting their message across.

That's why advocates in Washington, D.C., organized the somewhat grandly titled World's Fair Use Day in January.

Gigi Sohn is the president of Public Knowledge, a Washington, D.C., nonprofit that advocates for an open Internet. She brought about 100 lawyers, filmmakers and other stakeholders together for World's Fair Use Day. People like Jonathan McIntosh showed up. McIntosh is a self-described pop culture hacker who created a video mash-up of the Twilight vampire franchise and Buffy the Vampire Slayer.

McIntosh says his remix is a pro-feminist critique of Twilight, and that's why it's a fair use: because he's using excerpts to comment on the original works, thus producing something new out of copyrighted materials.

"Our culture is moving more and more into an audio-visual language," McIntosh says. "And so the question is, do we get to speak in the audio-visual language or not? And are we allowed to use audio-video to comment on what was on TV last night, or what we saw in the paper yesterday?"

It's the same principle that the producers of The Daily Show on Comedy Central employ every night.

But even fair use advocates admit the concept can be "mushy," to use Sohn's word. It's up to the courts to decide what is and isn't fair use on a case-by-case basis. But Sohn says that flexibility is exactly what makes the doctrine work.

"I really think we're talking about balance," Sohn says. "You want strong enforcement when people are breaking the law. But you also want strong limitations and exceptions when people create and innovate."

Imagine if in 1984, after the Sony Betamax decision had come out, we had said, 'OK, we're gonna stop there' ... We wouldn't have MP3 players like iPod. We probably wouldn't have TiVos.

That applies not just to content, but to the devices that deliver it. Sohn says fair use is what gives you the right to record TV shows and watch them later, thanks to the Supreme Court's ruling in the so-called Betamax case.

"Imagine if in 1984, after the Sony Betamax decision had come out, we had said, 'OK, we're gonna stop there," Sohn says. "You can record things for home use, and that's the limit of personal fair use. We wouldn't have MP3 players like iPod. We probably wouldn't have TiVos that can send things to your computers."

Fair use is what allows you to make your own copies of songs and TV shows for your personal use. But it's the high-profile copyright infringement claims that tend to get more attention — including a 2008 case involving presidential candidate John McCain.

The Ohio Republican Party used a few seconds of the Jackson Browne song "Running on Empty" in a campaign ad about Barack Obama's energy policy. Browne sued. And McCain's lawyer, Lincoln Bandlow, tried to mount a fair use defense.

"They didn't really take anything from Jackson Browne," Bandlow said. "They didn't deprive him of a sale of the song."

That case settled out of court, which happens a lot with fair use disputes. The lack of rulings, while making the law flexible, also adds to the confusion. That's why Pat Aufderheide at American University's Center for Social Media says more exposure for fair use is critical.

"To help educate people at both ends of the spectrum: the kids who are coming up who are often erroneously being told that all copying is plagiarism," Aufderheide says. "And our bosses and librarians and gatekeepers who haven't gotten the memo yet."

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