The focus of Vaidhyanathan's talk was "Fair Use" and "fair use," meaning the formal legal definition and the colloquial definition we all use. An underlying contention throughout his talk is that "Copyright can be an instrument of censorship." There is a "chilling effect" that happens when people become scared to creatively re-use existing works because they don't understand copyright law. In fact, a lot of the more interesting aspects of copyright law still haven't come up in the courts. Vaidhyanathan actually was hoping to be sued over his use of some Bob Dylan lyrics in his last book; he wasn't. (Ironically, he was quoting a Bob Dylan song in which Bob Dylan was retelling a story from the Bible. Vaidhyanathan's point was that the _idea_ behind a work is not under copyright - only the expression of the idea.)

He emphasized that "Fair Use" is just the legal defense against an accusation of copyright infringement - that's all it means. It's a negative right. Everyday people, on the other hand, think of "fair use" as a positive right. An example of framing fair use as a positive right is: "I can make a mix tape for my boyfriend because of fair use." But this is not really a legal definition." It's just what we've always done. There are four factors that the court weighs when deciding whether a re-use is "Fair Use": 1) What is the nature of the original work? (Non-fiction is easier to get away with than fiction, for example.) 2) What is the nature of the re-use? (Academic context? Critique?) 3) How much of the original work was taken? Did the second user take more than was necessary to make the point? 4) What is the effect on the market for the original work? Does it replace or dilute the original work?

He used a lot of examples such as the case against _The Nation_ for quoting "the heart of" (says the judge) Ford's memoir in a critical piece on Ford and his presidential pardon of Nixon (the Nation lost!!!) or Roy Orbison suing 2 Live Crew for using notes, beats, and lyrics from "Pretty Woman" (Roy lost). Basically, the easiest way to win if you're sued for infringement is to claim your re-use is a parody because that's done better in the courts! Even things that aren't really parodies like _The Wind Done Gone_ use the parody defense because it has good precedent. Vaidhyanathan argues that instead the court should have said that because of First Amendment rights, these re-uses ought to be legal, not because of parody.

Another important case is the Bizmarkee case of 1991 where this hip-hop artist sampled a piano riff - the original song was very emotionally laden and Bizmarkee's was less so, but it was not a comedic re-use at all. The judge was morally outraged that a young ruffian like Bizmarkee would dare to use this piano piece like he did and ordered the album off the shelves. (As Vaidhyanathan pointed out, this made the song a pain to find to play during his presentation - thank god for Napster!!!) So this has caused a chilling effect in hip hop b/c people are more afraid to use samples.

He continued by talking about how the courts have differentiated between illegal uses of technology and the technology itself. He pointed out that if a 5/4 split Supreme Court decision went the other way, we wouldn't be allowed to have VCRs in our homes! The movie industry actually didn't want to allow them because they were scared of people copying tapes and so on. But the Court decided that it wasn't the technology itself that should be outlawed, but practices using that technology. ("Guns don't kill people . . .")

He ended his talk by discussing peer-to-peer networks. A troubling trend he mentioned was that the music industry is trying to get ISPs to shut down users they suspect of downloading MP3s which is putting copyright control into the hands of private companies. (Verizon is fighting it.) Interestingly, the big entertainment industry mergers are making it so the same company (ex: AOL/Time Warner) is on both sides of the issue - they make movies, but they also don't want to alienate their ISP customers.

He points out that the matter of whether downloading MP3s is illegal hasn't actually come up in the courts yet (from the user end) and before that happens, we need to have an ethical debate about it. This debate needs to include the number of tracks on a CD taken (whole CD or just a sampling?), the socioeconomic status of the downloader (can they afford CDs? does it matter?), the use of the file, etc.

His book _Copyrights and Copywrongs_ looks at the history of copyright and intellectual property. (Aside: He doesn't think that the metaphor of "property" when applied to creative work is a very good one.) Coming out next year is _The Anarchist in the Library_ which looks at peer-to-peer networks.