We should pick our fights carefully, and this is not one worth fighting. If we dismiss the rights of others, even large companies, whenever it suits us, then how can we, the common folk, expect any better treatment from them when they decide to, say, download people's resume's from the internet and sell them for profit without permission from the resume owner?

As shown by the example above, it can often be difficult to determine whether a particular use qualifies as a fair use. It most cases, a copyright attorney should be consulted before undertaking any significant activity which would rely on the fair use doctrine as a defense to copyright infringement.

In reality, fair use is a complicated topic that essentially must be decided on a case-by-case basis in court. For instance, from the Bitlaw entry on fair use:

As an example of one of the misunderstandings, one of the clauses of the fair use exclusions allows you to reproduce a limited portion of a work ('substantially less then the whole') for the purposes of critique or review. The general public tends to believe that they are allowed to reproduce a large portion of the work for any purpose whatsoever... which is just not true.

It is a trivial exercise to determine if a use is protected as fair use... to someone who knows nothing about IP law except Slashdot-user slogans. To an IP lawyer, fair use is one of the most complicated things in the entire domain of IP. The public tends to miss the nuances of the real meanings of the laws, and since most of this debate is being held by the public, such ignorance is showing frequently.

"Fair Use" refers to the exclusions in copyright law that allow you to reproduce material without permission from the content owner, in fact even against their explicit wishes in certain situations. The most common is that of archival; you have the right to create back-up copies of things. (There is some debate about whether a EULA agreement on software can make you give that up, to my knowlege never resolved in court.

I hate to be a wet blanket on the Elian/Bud mix, but the authors of that movie are not as solidly on the right side of the law as many people may think.

Scary!

The entire following opinion on the Elian/Bud mix of course assumes Fair Use even exists... but there are efforts to eliminate it. First Amendment Lawyer Takes on Movie Studios in DVD Case: "If the judge's view is correct, Benkler said, then the Digital Millennium Copyright Act 'does something no copyright law has ever done -- it extinguishes fair use,' he said." With the anti-circumvention clause, one can protect any work against any unauthorized use, fair or otherwise, simply by protecting it with something, no matter how weak, that must be circumvented.

(That's one of the reasons I'm so against web site annotation. It's just one of the ways the heat gets turned up on web sites.)