July 11, 2004

"OutFoxed" and Fair-Use Strategy

OutFoxed is a documentary exposing the working of Fox News. And given its backers, it's the Daily Memo from the A-list (e.g. Dan Gillmor, Lessig).

Donna Wentworth brought up the topic of "Fair Use It or Lose It, Part II", as part of strategy. The issue are clear. As Lessig has said "Fair Use is the right to hire a lawyer". Using even the smallest clip is a legal hassle, much less a critical documentary made from them. But I was puzzled for a while as to the reason everyone seemed to be talking-up a potential lawsuit against the film, in a tone which struck me as odd. But after some thought, I believe I understood what was going on.

Now, Fox is known to be run by ultra-wealthy ranters. These people are in the enviable position of being able to ignore when their lawyers tell them they have a stupid case, and sue anyway. Their power allows them to indulge themselves both in expressing their ire (via not having to worry about consequences), and the incredible burdens of a lawsuit (via not having to worry about costs). I suspect that's how the silly "Fair And Balanced" trademark Fox News lawsuit against Al Franken came about. Let's pause for a moment to let this sink in. The vast, vast, majority of people just have to take abuse, they have no effective way to defend themselves. A very, very, few have the resources to fight back. Here, we're talking about an elite so rarefied that they can not only bring an expensive lawsuit, but do it for, basically, pleasure.

Anyway, thinking the situation through, the strategy became clear. If there's no lawsuit, well, at worst there's some publicity and promotion, both for the issues of fair use and for the film itself. But if Fox does sue - the resources of the defending the case go into both fighting the good copyfight, and an extensive broadside against the current administration (Hmm, what a twofer! I perceive the logic, I do indeed.)

Myself, I wouldn't have ever thought to suggest a serious strategy possibility of: try to get super-rich jerks to bring weak cases against lovable defendants. But that's probably just a failure of imagination on my part. If the people who would actually spend the money to fight the case think it's a good idea, I have no quarrel with it.

By Seth Finkelstein | posted in copyblight | on July 11, 2004 11:59 PM (Infothought permalink) | Followups
Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

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"Let's pause for a moment to let this sink in." I just had a Holy Moment.

Posted by: bw at July 12, 2004 07:57 AM

I'm not involved in this battle, so I really have no idea. However, it seems to me that the NY Times Magazine article and Washington Post articles were a shot across the bow of Fox. The PR campaing was not about daring Fox to launch a lawsuit, but emphasizing to Fox that it would cost much in publicity to fight this film. "By suing us, you'll only make us stronger." I think that the producer and lawyers involved would really prefer not to have to fight a lawsuit (which they might lose).

Posted by: Ernest Miller at July 12, 2004 09:39 AM

It's more than that. Look at Lessig's post, where he talks about

"... we need clear precedents that establish that critics have the freedom to criticize without having to hire a lawyer first ..."

That goes beyond publicity. Maybe to the realm of "Toss us into the briar patch, please, please, be crazy like you were with Al Franken, give me a slam-dunk case that'll be historic."

Of course, it could all be sophisticated posturing.

Posted by: Seth Finkelstein at July 12, 2004 10:03 AM