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4. The question of fair use usually comes up at the end of the
project, when we are up against a release deadline and out of
money.
In theory, fair use means you need no permission.The theory therefore
supports free culture and insulates against a permission culture.
But in practice, fair use functions very differently. The fuzzy lines of
the law, tied to the extraordinary liability if lines are crossed, means
that the effective fair use for many types of creators is slight. The law
has the right aim; practice has defeated the aim.
This practice shows just how far the law has come from its
eighteenth-century roots. The law was born as a shield to protect publishers’
profits against the unfair competition of a pirate. It has matured
into a sword that interferes with any use, transformative or not.
“PROPERTY” 99