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May 24, 2007

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Tim

Don't you think part of the problem here is the simple lack of precedent? It seems to me you could make an awfully strong case that the Faden video is a transformative use. While in the aggregate, he used about 10 minutes of footage, I don't think any one segment is more than a couple of seconds long. But Disney's smart enough not to sue in a case like this where there'd be a high probability of setting an unfavorable precedent. So there's a big grey area in the law: there are lots of uses that most people think are probably fair use, but that's not enough certainty to build a business on, so such activities remain in the fringes.

I'm not sure what the solution is. I'm always skeptical about having Congress get involved, I imagine that at some point, a mashed-up video work will become a big enough success that the relevant copyright holder will choose to sue. But in the meantime, I think the legal gray area may be holding back this type of creativity.

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