Illegal Proposition: Abuse and Damage the Source (Letter to Lessig)

Related post: Lane Hartwell & The Richter Scales
Related link: Thomas Hawk: More Crappy Censorship From Your Friends at Yahoo!


Dear Mr. Lessig,

Thank you for your reply a long while ago regarding my frustration over wikipedia photos! Now, let me try another tack in light of recent events. Apologies for the length.

Could it be made legal to... expand and merge clear fair use, quotation, transformative use, allowable "under the limit" use with "damaged" use:

• lo-fi audio (unpleasant, noisy, covered by other sound, tinny, bassy)
• lo-fi speech (almost or partly incomprehensible)
• lo-fi image (important detail missing, no color, no color fidelity, small part of image)
• lo-fi text (tiny, unreadable)
• lo-fi video (fuzzy, tiny, misshapen, jerky, lower frame rates)

If the use is clearly not fair use, or not agreed to:
the less "fair" the use is, the more you have to degrade the thing you are using, so it is absolutely undeniable that you are using the work because you must, but not stealing the thing.

In Hartwell v. Richter, let's assume there is only one photo of the subject, and no permission (but at least some sort of access.) Then, you have a painter or illustrator work from the photo, creating a new independent work. That may not always be possible, affordable, practical, scalable.

But, let's assume you are willing to torture the thing you want to use without permission.
Why can I not take the photo, print it on poor paper, get it wet, step on it, leave it in the sun, then scan it at poor fidelity, so that I have an indisputably inferior derivative "copy." Can I not use that, without permission?

My point here is that I think it would be a huge help if we could say that there is always more abuse, more squashing, more scratches, more dust, more noise, more distance, you can apply until you reach the point where a claim of infringement is so ridiculous as to make even the most aggressive lawyers blush. It becomes "fair use" because it's no longer aesthetically intact.

Take the Richter video into an editor, identify the Hartwell content, apply some censorware to the video, so that you see it strobe, or reverse, visually, so you see the censor marks but also sort of see underneath. Anyway, Ms. Hartwell might welcome a reversal of the take-down, and perhaps they could try to discuss compromise. Perhaps everyone wants to see it now. Perhaps its not as good as all that.  But, a single challenge should not mean sudden death and amnesia (take down and forget.)

Maybe people will realize satire and parody have the easy legal argument, and in fact have to be very close to the original to have that protection. 

Disney, Warner Bros., now with many decades of paid-for mythology that we'll be paying to see again on the screen or in the park. And, don't use Mickey or Bugs, or they will sue you, but they will use them promiscuously and greedily.

Perhaps social pressure will make people stop enforcing copyright when the real goal is to silence others and maintain a monopoly. A runaway success in remix culture may get clout and cash and permit creation of hi-fi derivative works.

Or, we can do nothing and wait for the corporate singularity (I'm trademarking that right now) to occur. That's when for obvious reasons different conglomerates merge geographically, so that entire states are serviced by one phone company multi-monopoly, one content provider, one retailer, et cetera.

We need to prevent the "owners name their own prices, at the last possible moment" bargaining, and try to force a uniform sane fee for a tortured derivative work, so you can retreat enough to be safe, then go forward. Each case should not be another fight to the finish over claims of infringement that call for death and amnesia. (and never offer reasonable licensing terms)

Their properties are not hated, people hate the way they are used like a bludgeon... And if they could just relinquish some control and see what develops.

Am I living in a fantasy to think this could be possible?

The kind Mr. Lessig responded:

From a practical perspective, it is a great solution. From a legal perspective, it is weaker, since copyright protects a "work" and not any particular copy of it. In some contexts, I agree this would be a great solution.