Fair Use Excuse Abuse on the Loose?
posted by Frank Pasquale
Given the comments on my last post, I should probably stop blogging the Nixon Peabody contretemps. But now that it’s hit VH1′s Best Week Ever as Best Jam of Summer ’07, I want to give as sympathetic a view as I can for the law firm’s plight.
First, fair use expert Matthew Sag has offered this view on legality of Lat’s making the song available:
ATL appears to be on pretty safe ground here in terms of fair use. The initial song is an unwitting (and cruel) self-parody and there is clear public interest in revealing it to the world. ATL’s release of the video is not commercial in the relevant sense because it does not compete with the law firm’s own exploitation of its IP.
Sag believes that a second user has an even stronger claim for protection. One question, though–are we comfortable with a world in which any embarrassing music/video that a company creates can be instantaneously distributed as soon as someone makes a fair use of it? Richard Epstein has argued that “the success of both personal and business endeavors depends on our ability to respect confidences and to keep private information private” (52 Stanford L. Rev. 1003). Epstein complains that the First Amendment has run roughshod over contracts that try to protect privacy.
So perhaps it should be no surprise that copyright–which consistently trumps First Amendment claims–should be invoked by Nixon Peabody. And fair use, as we were reminded in Eldred v. Ashcroft, is one of the few places where copyright tends to give way to First Amendment concerns. Perhaps firms of the future will classify their theme songs as trade secrets and contractually bind employees never to reveal them. It’s not exactly clear where the rock/scissors/paper game of IP/privacy/First Amendment would lead in such a case; Pam Samuelson’s piece on the topic offers some clues.