I've been talking about fair use with laypeople for more than 20 years. I've met so many people who possess the unshakable, serene confidence of the *truly* wrong, like the people who think fair use means you can take x words from a book, or y seconds from a song and it will always be fair, while anything more will never be.

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Or the people who think that if you violate any of the four factors, your use can't be fair - or the people who think that if you fail *all* of the four factors, you must be infringing (people, the Supreme Court is calling and they want to tell you about the Betamax!).

You might think that you can never quote a song lyric in a book without infringing copyright, or that you must clear every musical sample.

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You might be rock solid certain that scraping the web to train an AI is infringing. If you hold those beliefs, you do not understand the "fact intensive" nature of fair use.

But you can learn! It's actually a really cool and interesting and gnarly subject, and it's a favorite of copyright scholars, who have really fascinating disagreements and discussions about the subject.

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These discussions often key off of the controversies of the moment, but inevitably they implicate earlier fights about everything from the piano roll to 2 Live Crew to antiracist retellings of *Gone With the Wind*.

One of the most interesting discussions of fair use you can ask for took place in 2019, when the NYU Engelberg Center on Innovation Law & Policy held a symposium called "Proving IP."

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One of the panels featured dueling musicologists debating the merits of the *Blurred Lines* case. That case marked a turning point in music copyright, with the Marvin Gaye estate successfully suing Robin Thicke and Pharrell Williams for copying the "vibe" of Gaye's "Got to Give it Up."

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This initial takedown was fully automated, which is how Content ID works: rightsholders upload audio to claim it, and then Content ID removes other videos where that audio appears (rightsholders can also specify that videos with matching clips be demonetized, or that the ad revenue from those videos be diverted to the rightsholders).

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But Content ID has a safety valve: an uploader whose video has been incorrectly flagged can challenge the takedown. The case is then punted to the rightsholder, who has to manually renew or drop their claim. In the case of this symposium, the rightsholder was Universal Music Group, the largest record company in the world. UMG's personnel reviewed the video and did *not* drop the claim.

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99.99% of the time, that's where the story would end, for many reasons. First of all, most people don't understand fair use well enough to contest the judgment of a cosmically vast, unimaginably rich monopolist who wants to censor their video. Just as importantly, though, is that Content ID is a Byzantine system that is *nearly as complex as fair use*, but it's an entirely private affair, created and adjudicated by another galactic-scale monopolist (Google).

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Google's copyright enforcement system is a cod-legal regime with all the downsides of the law, and a few wrinkles of its own (for example, it's a system without lawyers - just corporate experts doing battle with laypeople). And a single mis-step can result in your video being deleted or your account being permanently deleted, along with every video you've ever posted.

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For people who make their living on audiovisual content, losing your Youtube account is an extinction-level event:

https://www.eff.org/wp/unfiltered-how-youtubes-content-id-discourages-fair-use-and-dictates-what-we-see-online

So for the average Youtuber, Content ID is a kind of Kafka-as-a-Service system that is always avoided and never investigated. But the Engelbert Center isn't your average Youtuber: they boast some of the country's top copyright experts, specializing in exactly the questions Youtube's Content ID is supposed to be adjudicating.

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