Tuesday, July 08, 2008

Patrick Ross and Fair Use

The Yiddish/Aramaic word “chutzpah” is well known, and has been defined variously as gall, audacity, insolence, and impertinence. Patrick Ross, head of the cartoonish Copyright Alliance, seems to have chutzpah in abundance, as seen on a blog post yesterday criticizing The Center for Social Media at American University, for its release of a “Code of Best Practices in Fair Use for Online Video.” The best practices are a “Future of Public Media Project,” funded by the Ford Foundation, a fact Mr. Ross omits.

Mr. Ross is not a lawyer, but formerly was with the right wing Progress and Freedom Foundation, which usually acts as a mouthpiece for corporate copyright owners. I have no idea whether or where Mr. Ross attempts to learn about copyright law, much less fair use. For my part, I have been a practicing copyright lawyer for 25 years, and have been studying fair use even longer, beginning in law school. In 1985, I wrote my first book on copyright, which was also the first book devoted just to fair use. The treatise’s first citation was by the Supreme Court in the Harper & Row case, issued shortly after the treatise came out. Subsequently, that treatise has been cited many more times by other courts. I have testified before a joint session of the IP subcommittees of Congress on fair use, worked on amendments to Section 107 as a Congressional staffer, argued fair use cases in the courts of appeals and district courts, written an article about fair use with Judge Posner, advised many clients about it, and discussed the issue with the European Commission, and many representatives of foreign governments. I am unaware of any qualifications Mr. Ross has to talk about fair use.

Nor is Mr. Ross an educator. Yet, regarding both fair use and education, in his criticism of the Center’s Best Practices, he speaks as if he knows more than those who are copyright lawyers and educators (and some who are both), beginning with a pompous, purported correction about the nature of fair use, scolding the Center for daring to utter the term “right” in the same sentence as fair use. I describe fair use as a privilege because in a court case entitlement to it has to be proved, and in this sense it is also an affirmative defense. But the status of fair use as an affirmative defense can be overstated. Technically, it means only that an initial burden of producing evidence lies with defendant. The ultimate burden of going forward always lies with plaintiff copyright owner. Even the weight of the burden of proof can vary depending on what the particular affirmative defense is. In the case of fair use, the principle is an extremely important one, essential to the constitutional goal of copyright, and without which copyright would probably be unconstitutional. The best expression of this is in Judge Leval’s seminal article, “Toward a Fair Use Standard,” 103 Harv. L. Rev. 1105, 1110 (1990): “Fair use should not be considered a bizarre, occasionally tolerated departure from the grand conception of the copyright design.”

To me that is the key: fair use is a part of the design of copyright, it is not an exception to it, and it is not to be applied begrudgingly or narrowly, but liberally. Yes, there is an initial obligation of defendant’s part to show that application of the defense in the particular case is not b.s., but once you do that, the playing field is not only level, but both sides of the equation have very important constitutional heft to them. Viewed this way, the question of whether fair use is a right or not is a waste of time. But lacking any understanding of law (does he also think he knows more about fair use than Judge Leval?), Mr. Ross chose to lead off his blog with precisely such a waste of time, delivered in a schoolmarmish manner, an odd conceit since he is not an educator but is criticizing educators.


Mr. Ross was just warming up to his main them, namely that the Center is engaging in “dangerous” activities, whereas the Copyright Alliance is engaging in the copyright equivalent of safe sex. Here is what the Center says about its “Best Practices”:

This document is a code of best practices that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use. Fair use is the right to use copyrighted material without permission or payment under some circumstances.

This is a guide to current acceptable practices, drawing on the actual activities of creators, as discussed among other places in the study Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video and backed by the judgment of a national panel of experts. It also draws, by way of analogy, upon the professional judgment and experience of documentary filmmakers, whose own code of best practices has been recognized throughout the film and television businesses.

WHAT THIS ISN’T

This code of best practices does not tell you the limits of fair use rights.

The Center’s Best Practices are not, therefore, legal advice, but instead an attempt to list some of the actual practices of those in the field, including, and I quote because Mr. Ross omits this, “the actual activities of creators ,” that is, those whose Mr. Ross’s organization purports to speak for but doesn't. Here is what Mr. Ross said on the Copyright Alliance’s blog yesterday about the Best Practices:

They have published a Best Practices Guide for fair use in online video. This is a dangerous effort. We at the Copyright Alliance support education on fair use and have information on our site. But our information is intentionally broad; we do not want to be in the position of giving legal advice to specific end-users of copyrighted works.
But that is precisely what the best practices guide writers run the risk of doing, although some review of the site suggests that there isn’t much “there” there. What is implied suggests a significant expansion of the current established thinking of fair use, going far beyond legal precedent. Lord help the individual who follows their guidance and finds out that just because AU says it’s fair use doesn’t mean it’s fair use.

Let’s see what this means: a guy who isn’t a lawyer, much less a copyright lawyer, thinks it is a dangerous effort for copyright lawyers, educators, and those who deal with real world fair use problems on a daily basis to address some of the common problems presented, not as legal advice, but as “best practices.” The safe sex approach, according to Mr. Ross is the type of education that Mr. Patrick’s group – a front for large corporate copyright owners – gives, namely always ask permission. I have previously blogged about the Copyright Alliances wildly one-sided view of copyright, so I won’t repeat it here. I don’t know what kind of a review Mr. Patrick Ross gave to the Center’s best practices, but I doubt it was either extensive or meaningful given the lack of a single example from the best practices themselves. He admits he only gave the Best Practices “some review,” but since he only refers to a video montage and not the practices themselves, he may have engaged in the equivalent of only reading the cover of a book.

I can say, based on my over 25 years of experience with fair use, over 25 years more than Mr. Ross has, that the site doesn’t “imply” “a significant expansion of the current established thinking of fair use, going far beyond legal precedent,” as he states. Mr. Ross’s purpose is not to engage in a constructive debate about specific examples and whether those examples are appropriately a fair use, something reasonable minds might disagree on. Rather, his purpose is to silence those who try to provide responsible, thoughtful guidance to those on the ground, and ultimately to silence those who dare to suggest there can be fair use at all.

17 comments:

Anonymous said...

I am glad for your reply, and agree with all of your substantive points.

However, I do wish you had not devoted so much time to attacking Mr. Ross's qualifications. Mr. Ross's character or qualifications should not be the point. Nor can his commentary be said to "silence" anyone, unless said commentary is accompanied by some degree of coercive power vis a vis those silenced.

The tone and general demeanour of Mr. Ross's criticism are, I agree, irritating, and certainly anger and replying in kind seem par for the course.

Still, one of the wonderful things about your blog has always been the way you have taken the high road and debated ideas, not the people behind them.

The spirit of the body of law most closely associated with the Aramaic (I didn't know this!) and Yiddish and, it should be said, Hebrew word you begin with, is a nice reminder of why that is the right road to go down.

Anonymous said...

Thanks for calling these guys out, Mr Patry. No one else with the standing to would.

William Patry said...

Dear Anon, I struggled, unsuccessfully, with the tone of the blog. The point of Mr. Ross's lack of qualifications, which I could have handled much better, was only to point out what was to me an anomaly: here you have at the Center lawyers, educators, and those on the ground, who have devoted years to the issue. Fair use is one those issues that is very difficult to handicap, so I accept that reasonable people can and do disagree on particular cases. I lost the last court of appeals fair use case I argued (Bill Graham), but knew it was a tough sell. I had of course nevertheless convinced myself of the righteousness of my side.

My problem with Mr. Ross's blog post is not therefore that he may disagree with this or that example, but the smear nature of his non-specific attack, and the claim that what the Center is doing is "dangerous." How can a guy who has zero experience with fair use accuse those who have a lot of experience with fair of being engaged in a dangerous effort? That was the point of discussing the relative experience, and the point of mentioning mine too: not that I know everything or am always right (witness Bill Graham), but that I would never accuse the Center of engaging in a dangerous effort. Rather, the mature, constructive way to go about things is to discuss specific examples, a task Mr. Ross seems not up to.

Patrick Ross said...

Mr. Patry, I've ignored your last few posts criticizing me but I guess someone can only be called out so many times. I know you don't like it when someone responds on their own blog instead of your own, but I hope you won't take offense that I have done so.

http://blog.copyrightalliance.org/?p=257

William Patry said...

Dear Mr. Ross, I am happy for you to have commented, and anywhere you want. I will respond to your comments on your blog here since the discussion began here, although I have also posted it on the Alliance's blog too. First, I don't dislike you at all. As you point out, I don't know you. I imagine you are a wonderful chap.

My criticisms have been of the views expressed by you on behalf of the Copyright Alliance. It is true I hold the Alliance in very low esteem, but that doesn't mean I feel the same way about you.

The reason I hold the Alliance in such low esteem is because of the views it expresses, and for no other reason. I disagree with the views it expresses because they are to me cartoonishly one-sided, and because of the claims that it represents people it clearly doesn't.

I don't go out of my way to criticize the Alliance, although it may seem that way. If I went out of my way, there is more than enough fodder to do it much more than once a month. In this particular case, what triggered my post, was your attack on the Center's Best Practices study. I found the attack shallow and silly, especially the statement that what the Center was doing was a dangerous effort. Surely your can't really believe that.

I am happy to debate specifics of the Center's Best Practices; that I think would be constructive. What is not constructive is your blanket condemnation of a thoughtful effort by thoughtful people who know a lot more about the subject than you do. In this respect, you state on your blog about me:

"It is admirable when someone spends a quarter-century examining every strip of bark on every single tree; they can be an accomplished arborist that way. But that can make it very difficult for that person to see that in fact a forest is comprised of those trees."

Well, what is it you think I am missing? Don't just throw out trite aphorisms that are meaningless; that is why I criticize you. You are all aphorism and no substance. What is it about fair use that you think I am missing, and that you miraculously get? What is it in my blog that makes you think that? Point to one thing in my blog that makes you think I am missing whatever it is you think I am missing, and that you get. You cannot expect respect by simply making pronouncements. I respect differences and learn more from people I disagree with than from those I agree with. My friend Judge Leval, who also apparently is a tree hugger, once told me, "The best way to know you have a mind is to change." I love changing my mind because it means I have learned. So, go ahead teach me.

Patrick Ross said...

Oh dear. I've spent my career as a professional writer, but it appears my opening metaphor fell flat. That doesn't bode well for the rest of the original post, obviously.

What I was clumsily trying to say was that in reading your blog over the years, I've seen a lot of attention paid to various legal precedents, international treaties, and law suits, but I never see a lot written about individual artists and creators. That's not a bad thing, really, it's not what you focus on and it's not what your readers are looking for. But it is what copyright means to me, and I frequently write about artists and creators, sometimes in the abstract and sometimes specifically. I've also been encouraging artists and creators to guest-blog on our site, and now that we are adding individual members I would suspect that will increase.

I know you're aware that copyright law addresses the rights of copyright owners. I know you also know that frequently copyright owners in the market are individuals, and that even when an artist or creator is no longer the owner he or she likely maintains a stake in that copyright being respected.

You once wrote this in reference to the Copyright Alliance: "Lets skip the flatulent rhetoric about government intervention and get down to the real issue: finding the policy that does the most good for the most people; and when we do we'll be thankful to have the government intervene." Your "most good for the most people" line struck a nerve with me. It showed me that you were like many who found fault with some of us who call ourselves supporters of copyright; you were focused on the larger community that enjoys creative works. Again, I am not criticizing here, because I think this also applies to the population at large and to many in the media.

As a member of our community I certainly wish to enjoy these works as well, but I fear anything that involves "the most good for the most people," because as you know well artists and creators are a distinct minority. You could easily derive a copyright system serving "most people" that completely ignores artists and creators.

So when you discuss fair use, you're looking to expand options for the community to better enjoy creative works. I respect that. When I look at fair use, I want fair use to encourage the creation of new works, but I also want to make sure it doesn't go so far as to discourage the creation of the original works, without which fair use isn't possible.

We are simply looking at opposite ends of the same looking glass, but for each of us our view is magnified. I can't possibly imagine that we'll successfully manage to turn the other around to see through the other side consistently. I would instead humbly suggest that we each feel passionately about our perspectives on copyright, that we each bring our own backgrounds and perspective to the debate, that those respective backgrounds give each of us some advantages over the other regarding perspective on the issue, and that the best path is always civil discourse.

Robin said...

Well said, Mr. Patry.

William Patry said...

Thanks Patrick for your thoughtful last comment. I certainly respect your passion for protecting individual artists, although I am uncertain whether your various views on copyright law and the Alliance's corporate members are consistent with artist's interests. But I accept you genuinely think they are.

As a music major in college (composition) and wind player for so many decades I am ashamed to admit it, I support individual artists' creativity. I think your view of my views is quite incomplete, due perhaps to your reading just the blog. I do have a 6,000 page treatise that is more expansive, and I think if you read that, you would change your mind about your suppositions that I am somehow anti-copyright owner, whatever that may mean. I don't think there is a creator versus user dichotomy. I think many disputes are between creators and I think that a restrictive fair use approach and extensive rights harm individual creators deeply.

I disagree with your view that "copyright law addresses the rights of copyright owners." That statement, to me, is an excellent example of our differences. Copyright law addresses promoting the progress of science, with limited rights to authors being a utilitarian tool. The Supreme Court has held many times that whatever rights Congress grants are secondary to the public interest. I include in the public interest other creators, but it is clear and has been for a very long time that the copyright law is not principally concerned with the rights of copyright owners.

Because you start, I believe, from an erroneous premise, I think you also believe erroneously that limitations and exceptions are exceptional, a departure from the natural state of affairs. That's why Judge Leval's quote about fair use is important; the view is wrong as a matter of present law, and it is historically woefully wrong.

If one wants to play originalist, what do you say about the first copyright act, which protected only books, maps and charts, granted protection only based on rigorous formalities, had a 14 year term of protection, followed by the possibility of a 14 year renewal term (rarely exercised),granted no derivative rights, no public performance right, no display right, had liberal fair use, encouraged the copying of foreign authors without payment as official U.S. policy, etc. etc.?

One consequence of the copyright on steroids regime we have now is amnesia, and a belief that the way things are now is either the way things have always been, or were destined to be, or should be. I have said before and will say again now, that I am pro-IP in the most important sense: I believe that copyright in an appropriate, balanced way, is essential for many works. But that says nothing about the scope of those rights: one cannot simply say you are "pro-copyright" but ignore all the important details about what that law will actually look like in practice.

I believe that our current regime is way off base in this respect (the term is too long, the remedies too extensive, the DMCA is very anti-innovative), and to the extent that I mention such imbalances in the blog more often than some would like is that corporate copyright owners -- those who pay your salary -- are constantly seeking to get that balance tilted even more in the wrong direction. I think that is anti-copyright, that it is always government intervention, and is very harmful to individual artists, and I think people who care about copyright deeply as I do should talk out. Those who don't talk out against the destruction of something you love have no right to complain after the destruction is complete. So yes, I do complain and will continue too. But as you are aware, the blog is a mix of all sorts of stuff, including usually geeky inquiries into case law or obscure questions. The policy stuff gets the most attention because everyone has an opinion, but the day to day stuff of the blog is of a different order. (See tomorrow's blog for example).

I am not exaggerating though about the continue efforts to ratchet up protection, and therefore the need to speak out againsr those efforts. One need only read the RIAA's wish list to USTR on ACTA to see this, or the Orwellian Pro-IP bill. People should be upset at such things. Such proposals in no way help individual artists. To describe such measures as piracy or counterfeiting is also wrong: those too are Orwellian terms like "No Child Left Behind." What has been left behind in my view is the interest of the public and individual creators. I think my expressions of protest are pro-individual creator and pro-copyright.

In any event, I very much appreciate your last comment, which was indeed an excellent example of civil discourse. If I wore a hat, I would tip it to you.

Howard Knopf said...

Well, the Guidelines got a good review from The Hollywood Reporter blog, no less.

THR blog is hardly a radical, piratical, anti-copyright forum. Indeed, quite the contrary.

Fair use and fair dealing, as we call it in Canada, are under attack. You are right to defend the concept, Bill. Without it, copyright law would lack legitimacy and would not be sustainable. Nor would culture, as we know it, be sustainable.

It's an old platitude attributed to many great creators - but most notably Stravinsky - that good artists "borrow" but great artists "steal."

Howard

Anonymous said...

Mr. Ross said "artists and creators are a distinct minority".

Perhaps what he meant to say was "the artists and creators that I represent are a distinct minority."

We are all artists and creators - a utilitarian system that provides the most good for the most people would protect each of us in our capacity as a creator as well as in our capacity as users and consumers of creative content.

What differentiates the corporate backers of Mr. Ross's Alliance is that they don't care much for the latter.

These companies pretend, and have thus far convinced policymakers, that maximizing their welfare is the same as maximizing the public welfare. In fact, Mr. Ross seems to have "drank the Kool-Aid" insofar as he too believes this is true.

If fair use of works discourages the creation of new works (for example, authors do not market their works because they are afraid of criticism), then that is the price we pay for elevating other interests - such as free expression - over copyright. In that case, we are maximizing public welfare without maximizing the welfare of Mr. Ross's corporate backers.

You can argue against that if you want, but at least be honest that you are not taking issue with fair use, but rather with the fact that the public's interest is being placed ahead of that of rightholding corporations.

joshua wattles said...

Since the beginning of legislatures (and probably Kings and Queens)undertaking to create rights like copyrights, the focus of discussion would turn to artists and creators with capital letters. But as the last annon suggests, copyright ownership belongs to us all. Every email we write, every photo placed onto Flikr, every music file or video clip - - no matter how mundane or dreadful - - gets the same level of protection as does Mr. Ross's well-written descriptions of trees with intricate bark or the great works from Hollywood, Soho lofts, South Central cul-de-sac rappers, writers in Nebraska, musicians in Nashville and new Opera composers in Dallas and so forth. Even the plans for the worst track home saltbox enjoy a heavy set of protections now. We are no longer at the point in the policy discussions of copyright where we can logically invoke the needs of select classes of individual artists above those of other "authors" in the most common sense. Copyright on all sides (if there are sides) of authors, owners and users is public law for public uses in the grandest sense. It is about massive commercial interests as much as about a recipe posted to the Betty Crocker cooking contest site and the very complex copyright treatment it might receive. It's not just Mark Twain looking to get royalties from Europe by having his government sign a few treaties. Copyright policy is multi-faceted. The Alliance and the Center are free to shine on only one surface. Neither should pretend that they are anything other than parochial in their views. The policy debate is not which view gets to prevail, the policy debate is about accommodating all of the needs of all of the participants in a copyright scheme. Those needs change and they evolve. Fair use is one of the few parts of the law that shows a capacity for adapting to new circumstances and it is no wonder that it receives so much focus while we are in the midst of actual revolutionary forces in the making and use of copyrighted content.

BTW, if we wish to speak of artists with a capital A, then let's honestly approach moral rights and consider providing them to our U.S. artists in fair measures.

actonline said...

Mr. Patry,

You run a great blog here and I always look forward to reading your insights on copyright. I was therefore disappointed in the tack you took in this piece, even though I agree with your basic point.

I have gotten to know Patrick pretty well as journalist and copyright advocate, and it is definitely a mistake to question his sincerity on these issues. It is equally dangerous to suggest that ONLY those steeped in copyright law can have credible views on the issue. The laws are created for the good of the people (hopefully), and the consumers, artists, and innovators that are directly affected by them have every right to voice their opinions and their experiences with those laws. Those voices are every bit as credible as those from the lawyers who are fully ensconced in every nook and cranny of the law, but have never lived with it outside the courtroom where its effects take form.

While Patrick’s harping on the fact that Fair Use is not a “right” may seem useless, anyone that works in and around politics knows how much language matters in the debates. Advocates for strong copyright protection are understandably reluctant to let that concept solidify in the public consciousness. It reminds me a little of Richard Stallman’s consistent efforts to attack the term “intellectual property” on principle, even though it has no practical value in most discussions.

All that said, I disagree with Patrick’s criticism of the “Code of Best Practices in Fair Use for Online Video” from the Center for Social Media. While I understand Patrick’s concerns about a project like this that has no input from representatives of the copyright industry, he is wrong to suggest that the entire project is a misguided “dangerous effort.” There is plenty of room to debate the individual recommendations of the Code of Best Practices, but there is NO question that we need MORE, not fewer, efforts like this one.

Copyright law is incredibly complex in its own right and being stretched by new technologies like social media every day. In this environment, consumers, innovators, citizen journalists, and social media participants of every kind, are looking for rules of the road…because most of them WANT to do the right thing. However, they are often caught in the middle of copyright holders and the anti-copyright fringe and left thinking, “Nothing is legally possible!” Yet, the opposite is almost always true.

We at ACT are also taking up this challenge and are preparing to publish an “Innovators Guide to the DMCA” that will hopefully contribute to the goal of giving technologists easy to understand rules for the road. We’ve engaged one of the original drafters of the DMCA, several other copyright lawyers, and representatives from tech startups from around the world in our drafting process. The goal is to stop spreading the Fear Uncertainty and Doubt about what technologists CAN’T do and start telling them all the things they CAN do and ways they can shape their technologies and business models to be on safer ground.

I will be sure to send it your way when we're done. Hopefully, your readers will find it useful in the future.

Mark Blafkin
Association for Competitive Technology
http://blog.actonline.org

Anonymous said...

Anonymous has left a new comment on your post "Progress and Freedom Foundation Jammie Thomas Brie...":

Mr. Patry,

I apologize for attributing to you the view, expressed by the other Anonymous, that funding taints the views of an organization.

However, I think it is fair to say that you appear to view PFF as a corporate shill, while you view EFF as a public interest organization with purer motives.

I think EFF is no more pure than PFF in its policy positions, and since it doesn't disclose funding, it may be less pure.

PFF is no more a trade association than is EFF. PFF is a think tank/policy organization that gets funding from disclosed corporate interests. EFF is a policy/litigation organization that gets funding from undisclosed interests. PFF was not set up by corporate interests and doesn't operate for their benefit, but certainly the positions advocated by its scholars are strongly supported by certain segments of the business community (IP owners, media companies), and those business do provide funding to PFF. Similarly, EFF was not set up by corporate interests and doesn't operate for their benefit, but the positions it takes tend to reflect views that certain segments of the business community (Internet and CE companies) strongly support. However, since EFF doesn't disclose its funding sources, we can only speculate whether those technology/CE companies or their corporate officers provide funding to PFF. Perhaps you could let us know whether Google is an EFF funder.

William Patry said...

Mark, I haven't questioned Patrick's sincerity; to contrary, I told him I was sure his views are genuinely held. Lost in all of the comments is the fact that the issue got going when Patrick went out of his way to attack the Center's guidelines, calling them a dangerous effort. My blog challenged that description, and I f this was a medical blog, and nothink rightly so. So if one wants to keep track of who threw the first stone, it was Patrick, not me.

Another point misstated in the comments is that I was stating or inferring that only those steeped in copyright can have credible views. That is not the way I feel. My point was again tied to Patrick's description of the Center's efforts as dangerous. I mentioned my background not to suggest I am right (that's why I mentioned by loss in the Bill Graham case) and that he is wrong, but to state that I have an extensive background and the Center's views were not dangerous to me. Patrick's problem with his post is that he chose to condemn in a vague, blanket way a thoughtful effort, with ZERO specifics. I repeatedly asked him to discuss specifics, and he never did. I said, let's have a constructive debate by discussing what the Center's practices say. He never did, and frankly not a single comment on this blog has either. So, sure non-lawyers can have credible view on law, but no one, lawyer or not can expect to be regarded as credible if they just issue blanket condemnations and refuse to actually discuss what was said.

William Patry said...

Dear last Anon:

I do not think, as you say, that "I view PFF as a corporate shill, while [I] view EFF as a public interest organization with purer motives."

A wonderful former Register of Copyright, Abraham Kaminstein once said that we are all special pleaders, no matter no noble we believe our cause is. That includes EFF, PFF, me, and you.

I continue to be baffled by how a compliment to PFF about disclosure of its funding is being taken as its opposite. At this point, the misreading is willful. I don't know from whom EFF gets its money or where Google spends its money either, and cannot imagine why anyone asks me. This is, as the blog, notes my blog, and my views only.

William Patry said...

Dear last Anon:

I would also point out the incredible inconsistency that while you have repeatedly talked about disclosure you are posting anonymously. What's sauce for the goose is sauce for the gander.

Steven said...

Mark, when you refer to Stallman's

"consistent efforts to attack the term “intellectual property” on principle, even though it has no practical value in most discussions",

it reminds me of the attack on the term "right" about which this discussion revolves. I see an attempt to politicize the debate by hamstringing the principle of fair use in the public mind and thereby forcing a change in practical behavior under the law.

As a long-time reader of this blog, I'm sure you realize Mr. Patry has more experience with copyright law out of the courtroom than the vast majority of us. As someone who has published a significant commercial work which he wishes to be compensated for (and also distributes invaluable intellectual property free of charge through his blog posts), he has no fewer moral rights as a content creator then Disney or Warner Brothers.

No less importantly, some of these same blog posts show him feeling the harsh sting of ill-considered laws and restrictions like the DMCA. In practical terms, this places him above those of my friends (and, arguably, some very large organizations) which are apparently unaware that copyright law has been generally designed to be their friend as a consumer. Those who don't believe we should be able to consume legally purchased content when and where we want are just as irrelevant as anyone who wants New Line Cinema to deliver him hit movies free of charge.