Fair's Fair, Except When It Isn't

We've taken an important step forward in technology adoption at our house. Elizabeth is now willing sometimes to use earphones with her iPad, which means other audio traffic doesn't have to penetrate a backbeat of Dora, Caillou or Peppa Pig.

I was watching the men's U.S. Open final when I took this picture. I recorded the moment because I was so thrilled to be able to hear John McEnroe's commentary at a reasonable decibel level.

But relief from digital toddler background noise comes at a price. It takes more diligence to monitor what she's watching, something that given the nature of YouTube was tricky enough already.

One of the so-called "tropes" of user-generated online video is the taking of familiar clips and altering or replacing the soundtrack to produce something the user imagines is creative.

Even programming originally intended for small children gets fiddled with by amateurs with nothing better to do. The results range from fatuous to vulgar to scatalogical or otherwise obscene.

On YouTube, these moronic contributions to the creative commons show up mingled in the same search results with the real stuff. So Elizabeth occasionally queues one up. Usually we notice right away, but not if we can't hear it, which we can't if she's using the new pinky-pink earphones.

Thinking about this kind of misappropriation of copyright-protected material by juvenile vandals takes me back to my days helping AP with intellectual property issues . . . actually to one day in particular that still rates as one of my worst at the office ever.

It was in the weeks just after a squad of U.S. Marshals in riot gear plucked Elian Gonzalez from the arms of his dead mother's family in a scene recorded in a memorable and celebrated AP photo that was published almost everywhere.

A couple of goofball web designers copied the photo and animated it to produce a crude takeoff on those old Budweiser "Wasssup?" commercials. It was pretty hilarious, but AP's photo department was outraged and insisted that I do something about it.

I sent the pranksters a stiff takedown notice. They did take their video down, but they put my notice up in its place. By then their amusing video had accumulated a huge online audience, courtesy of some radio shock jocks who plugged it on the air.

Within minutes, my email account was clogged with hate messages and death threats, and furious callers almost took down the entire AP headquarters centrex system.

Then the pranksters lawyered up and went to court seeking a judgment declaring that their video was protected parody under the "fair use" provisions of the Copyright Act which AP had no right to suppress.

The case they relied on was one in which the owners of rights to Roy Orbison's "Pretty Woman" tried to quash a rapper version by 2 Live Crew that played off the lyrics, rhythms, themes and images of Orbison's original.

The Supreme Court held that the rappers had made fair use of the original song, producing a new work that did appropriate the original copyright-protected song but only to the extent necessary to create commentary on it. The justices concluded such works are entitled to a free pass from breach of copyright lawsuits.

It's been a pet peeve of mine ever since my Elian misadventure that everybody in the copyright community seems to think that case -- Campbell v. Acuff-Rose Music -- stands for the principle that any parody making use of somebody else's work is exempt from copyright prosecution. I truly believe they're all wrong.

If you read the case closely, I think you have to conclude that what the court intended to protect as fair use was parody or satire that directly commented on the appropriated original content. Just goofing around with somebody else's stuff for laughs doesn't qualify.

At best, the Elian video was a spoof of the Bud commercials. It certainly made no attempt to comment on the photo, except maybe on its ubiquity. The spoofers admitted as much afterward.

But in those days AP had no appetite for playing anti-free speech troll in a federal copyright case, so we pulled in our horns and slunk away to watch while the video went viral.

Fair use law remains a muddle, different in the eye of every beholder, and even federal judges often seem not to understand it very well.

But Elizabeth is only three years old, and in our house these are golden years in which I get to decide all by myself which content thefts deserve protection and which are mindless trash.  I am using my power for good.