I think a lot of this is essentially governed by ‘who’s asking’. If you post a Seinfeld episode transcript somewhere it’s copyrighted but it’s unlikely anyone will care. If you post an Aerosmith song prepare for the DMCA
In my career as a wage slave, I learned to never ask a lawyer for permission, as the answer was invariably "No" (unless one of the C-suiters asked, then the lawyer would bend over backwards to say "yes.").
But if my risk manifested, I was on the gibbet. Ask forgiveness, but don't expect mercy, if you really screw the pooch.
"Anyone who claims you can answer fair use controversies by running through the four factors as though they were a checklist really doesn't understand fair use"
I agree, but the problem I see far more often is the people who claim something is "fair use" without considering any of those four criteria, for which the four-question analysis returns a clear "no" for all four questions. Or "unclear but trending no".
The internet at large defines "fair use" as "I want to be able to do that for free".
Yeah, maybe somewhere in the bowels of the megabytes of legal proceedings there's some fair use case that clearly failed all four criteria and was still found to be "fair use". This being 2026, I went ahead and asked an AI if it could turn up such a case, with the "high effort" on, and it came back with no. My prompt specified that I wasn't looking for the judge to rigidly specify "no", just express a belief that they were weak but then rule in their favor anyhow. Maybe an AI oriented towards legal searching could do better and if someone can come up with one, I'd be interested in seeing it.
But even if someone does come up with one, it is fairly clearly a curiosity and not something you should bet your future legal status or a business on.
This was interesting overall, but since Wikipedia existed for years under GFDL, this sentence is extremely dubious. Wikipedia would probably exist in some form if it hadn't switched licencing. It's not like the Creative Commons people, as much credit as they do deserve, were the _only_ people thinking and trying to address the issues posed.
Interesting. I didn't know all this nuance in CC law, and I imagine majority of people don't or know some version of the law. Granted even reading this, I think the people asking aren't exactly wrong but more covering their bases; which is a better legal backdrop than his stance.
An aside: The phrase "paper over" is used several times, in a way that seems to mean review/look over. My understanding of that term is that it means to cover up or to hide. The earlier ones felt like perhaps condescending on the legalism (attorneys finding a way to make something work), but I couldn't shoehorn one of the later usages. Is this a different usage I am not familiar with?
(As for the post itself I strongly agree with the thrust! There is so much stuff in the world that you are never going to get explicit permission from anyone to do. And legal questions specifically you will often get a "no" when the real answer is yes - even from an attorney giving legal advice!)
The first definition of this phrase per Merriam-Webster is "to gloss over, explain away, or patch up (differences, disparities, etc.) especially in order to maintain a semblance of unity or agreement". I was also not familiar with it until I went to look.
I think a lot of this is essentially governed by ‘who’s asking’. If you post a Seinfeld episode transcript somewhere it’s copyrighted but it’s unlikely anyone will care. If you post an Aerosmith song prepare for the DMCA
In my career as a wage slave, I learned to never ask a lawyer for permission, as the answer was invariably "No" (unless one of the C-suiters asked, then the lawyer would bend over backwards to say "yes.").
But if my risk manifested, I was on the gibbet. Ask forgiveness, but don't expect mercy, if you really screw the pooch.
"Anyone who claims you can answer fair use controversies by running through the four factors as though they were a checklist really doesn't understand fair use"
I agree, but the problem I see far more often is the people who claim something is "fair use" without considering any of those four criteria, for which the four-question analysis returns a clear "no" for all four questions. Or "unclear but trending no".
The internet at large defines "fair use" as "I want to be able to do that for free".
Yeah, maybe somewhere in the bowels of the megabytes of legal proceedings there's some fair use case that clearly failed all four criteria and was still found to be "fair use". This being 2026, I went ahead and asked an AI if it could turn up such a case, with the "high effort" on, and it came back with no. My prompt specified that I wasn't looking for the judge to rigidly specify "no", just express a belief that they were weak but then rule in their favor anyhow. Maybe an AI oriented towards legal searching could do better and if someone can come up with one, I'd be interested in seeing it.
But even if someone does come up with one, it is fairly clearly a curiosity and not something you should bet your future legal status or a business on.
> Without CC, we wouldn't have Wikipedia
This was interesting overall, but since Wikipedia existed for years under GFDL, this sentence is extremely dubious. Wikipedia would probably exist in some form if it hadn't switched licencing. It's not like the Creative Commons people, as much credit as they do deserve, were the _only_ people thinking and trying to address the issues posed.
Interesting. I didn't know all this nuance in CC law, and I imagine majority of people don't or know some version of the law. Granted even reading this, I think the people asking aren't exactly wrong but more covering their bases; which is a better legal backdrop than his stance.
An aside: The phrase "paper over" is used several times, in a way that seems to mean review/look over. My understanding of that term is that it means to cover up or to hide. The earlier ones felt like perhaps condescending on the legalism (attorneys finding a way to make something work), but I couldn't shoehorn one of the later usages. Is this a different usage I am not familiar with?
(As for the post itself I strongly agree with the thrust! There is so much stuff in the world that you are never going to get explicit permission from anyone to do. And legal questions specifically you will often get a "no" when the real answer is yes - even from an attorney giving legal advice!)
The first definition of this phrase per Merriam-Webster is "to gloss over, explain away, or patch up (differences, disparities, etc.) especially in order to maintain a semblance of unity or agreement". I was also not familiar with it until I went to look.