Pluralistic: Better to beg forgiveness (31 Jul 2026) – Pluralistic: Daily links from Cory Doctorow

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Better to beg forgiveness: Don't ring the doorbell at the house of no unless you absolutely must.

Hey look at this: Delights to delectate.

Object permanence: RIP Poul Anderson; P2P at PC Forum; Waitress handed her own stolen ID by carded diner; PDX bans fixies; Digital Economy Bill was a stitch up; NZ copyright disconnection flowchart; Fry v Widdicombe on Catholic Church; Moxie Marlinspike profile; V&A bans sketching; Gernsback's intro to the first Amazing Stories; "Simplicity."

Upcoming appearances: Edinburgh, Sydney, Melbourne, Brighton, London, South Bend.

Recent appearances: Where I've been.

Latest books: You keep readin' em, I'll keep writin' 'em.

Upcoming books: Like I said, I'll keep writin' 'em.

Colophon: All the rest.

Better to beg forgiveness (permalink)

From its inception, I've loved Creative Commons. I hung out with Lisa Rein, Matt Haughey and Aaron Swartz while they coded up the first version of the site, and my first novel, Down and Out in the Magic Kingdom, was the first professionally published text ever released under a CC license, just weeks after CC itself launched:

https://creativecommons.org/

In those early days, CC licenses were primarily of interest to people who were steeped in copyright law, lore and litigation; so many of the early debates about these licenses turned on esoteric (but important!) questions about copyright; for example, how CC would interact with copyright's "limitations and exceptions."

You see, copyright has never meant the absolute right to control all uses of a work. Every system of copyright includes a set of "limitations and exceptions" for people making use of copyrighted works without permission, even if the copyright holder objects to that use. The best-known example of this is "fair use," a concept from American law.

Fair use is (potentially) extremely broad, but it's also extremely "fact-intensive" – that's the phrase lawyers use to describe the kind of legal question whose answer is almost always "it depends." Fair use might let you copy the entirety of a work, even for a commercial purpose. It might let you create new works based on existing works. It might let you do these things specifically to discourage people from buying the original. But…it depends.

If you know anything about fair use, it's probably something about a "four-step test" used to determine if a usage is fair. These four steps are just questions a judge might ask of someone who's been sued for copyright infringement, but who claims that they were making a fair use. The questions are:

I. What was the "nature and purpose" of your use? Were you doing something "transformative?" Were you criticizing the work? Were you using the work for educational purposes?

II. What was the nature of the work you used? Was it primarily factual (like a news article) or creative (like a short story)?

III. How much of the work did you take? Did you take more than you needed to transform the work, to accomplish your criticism, to teach someone?

IV. What impact did your use have on the original? Did the copyright holder lose money as a result of your use?

https://fairuse.stanford.edu/overview/fair-use/four-factors/

These questions are indeed enshrined in US copyright law, but (for better and for worse) you can't figure out if a use is "fair" just by asking these questions. Fair use is ultimately subject to "the rule of reason," a legal principle meaning that the law shouldn't result in obviously stupid restrictions. What's "obviously stupid?" Well, that's the tricky part – you'll have to convince a judge!

For example, the author of a book called The Wind Done Gone was sued for taking the characters, plot and setting of Gone With the Wind in order to tell the same story from the perspective of the enslaved Africans who were denied agency and moral consideration in the original. The court found for The Wind Done Gone:

https://en.wikipedia.org/wiki/The_Wind_Done_Gone

Wind Done Gone took the "heart" of Gone With the Wind (III), but then again, Done Gone was highly transformative (I), Gone With was also a work of fiction, entitled to the highest level of protection (II). Even worse, the point of Done Gone was to point out the gross defects in Gone With (I) and thus directly undermine sales and licensing for the original (IV). 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:

https://pluralistic.net/2022/02/06/crypto-copyright-%f0%9f%a4%a1%f0%9f%92%a9/

But even after you've acquired an appreciation of the fact-intensive, nuanced flexibility of fair use, you still don't understand copyright's limitations and exceptions. Fair use is important, but there's also "first sale,"...