Brandon Butler
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Brandon Butler
@bb.usefairuse.com
850 followers 530 following 720 posts
Copyright lawyer at Jaszi Butler PLLC, Exec Director @recreatecoalition.bsky.social, dad. Press inquiries: [email protected].
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And here are shots of the 2025 thread (with alt text, ofc).
Brandon Butler O @bc_butler X.com I'm an advisor to the @AmLawInst Restatement of Copyright, and I have nothing but admiration for the authors' extraordinary patience, humility, and erudition in the face of a ceaseless onslaught of sniping and mean-spirited, unfair attacks from critics, including some advisors. 12:40 PM • 5/16/25 • 443 Views • | 1 17 2 1 Brandon Butler • @bc butler • 5/16/25 It was generous as well as politically astute and substantively wise to attempt to bring some of these voices into the tent to help shape the Restatement. In some cases they raised points that were genuinely helpful, and their input was gratefully received and adopted. 0 1 Brandon Butler • @bc_butler • 5/16/25 Had they continued to participate in good faith, I'm sure they would have made the document better. In that sense, it's regrettable that these folks have decided to abandon the project. HOWEVER. It is simply false to suggest • 1 ill 68 贝 L Brandon Butler • @bc butler • 5/16/25 O... that the people resigning today did not get a fair hearing from the authors or that their feedback was never taken on board. They did and it was, many times. I was there. What the authors did not do was surrender the project entirely to one side of the copyright wars. 01 O1 贝 Brandon Butler • @bc butler • 5/16/25 Many folks resigning today are partisans in those wars, and repeat players in high-stakes copyright litigation campaigns waged by deep-pocketed content industry clients. They and their clients have a vested interest in propagating maximalist views of copyright that push 0 1 贝 O... Brandon Butler O @bc_butler - 5/16/25 O ... the boundaries of the law and unsettle its balance to favor control. Some have treated the Restatement project as just another courtroom, where they zealously advocated for their clients' interests. Copyright law is notoriously complex and when judges don't have a reliable guide, 贝 Brandon Butler • @bc butler • 5/16/25 clever litigators have more leeway to shade the law to reflect their clients' positions. The Restatement project is a threat to them for the same reason any attempt to shed light on a subject is a threat to zealous advocacy for a slanted view: it gives judges a fuller picture. •1 貝 1. 16AM Fri Nov 14 Brandon Butler • @bc_butler • 5/16/25 g...) Like everything in copyright right now, this conflict is driven by the fight over Al. Most signatories are partisans in that fight, and they are counting on courts ignoring fair use precedent and accepting baseless new theories like "market dilution" in order to win those cases. • 1 贝 L Brandon Butler • @bc_butler • 5/16/25 The timing of this is not a coincidence. The ALl Annual Membership Meeting is next week, and at that meeting the members will likely endorse the latest draft version of the Restatement, including a chapter on the fair use doctrine. g ...) Meetings ali.org 0 1 せ • 1 ll 63 贝 Brandon Butler • @bc_butler • 5/16/25 Once the draft is endorsed, it will be published and, crucially, citable by courts. This is a last-ditch effort to kill or discredit the Restatement before it can join the Copyright Office report as a citable source in the Al wars. ali.org/publications/r... AM Fri Nov 14 - Post ..• Brandon Butler • @bc butler • 5/16/25 Critics are telling on themselves by condemning the Restatement draft, because it is (unlike the Copyright Office report) entirely anodyne. Its explication of the law hews to the statute and the cases, and does not explore "uncharted territory." Q1 ill 67 Brandon Butler • @bc butler • 5/16/25| O... Where the Copyright Office report is a highly political document that tries to find a middle ground between the partisan voices who filed comments in the NOI, the Restatement is an objective exercise that tries to say faithfully what the law is. 01 02 ill 68 贝 L Brandon Butler • @bc_butler • 5/16/25 O ... The objection, then, is to the publication of a document that will give judges a fair summary of the state of copyright law with the imprimatur of one of the most prestigious legal institutions in the US. Its opponents would rather courts continue to operate in the fog of war. てい ıh| 95 贝 Brandon Butler • @bc_butler • 5/16/25 PS: Of course I'm also a partisan in these wars! And I am not fully satisfied with the Restatement insofar as *I think it could go further in favor of my own view". But of course, I recognize the role of the Restatement in the law and my own role as an advisor.
November 14, 2025 at 2:19 PM
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2021 X thread screenshot, thrilling conclusion (2/2)
Brandon Butler • @bc_butler • 6/8/21| You can't help but admire the chutzpah involved in this epic gaslighting effort, but it's still gaslighting. Literally every critic who has leveled ad hominem charges at the Restatement authors is or has been a paid advocate for the copyright industries. • 1 • 6 O ... Brandon Butler • @bc_butler • 6/8/21| O ... Dark insinuations about serving Google and undercutting copyright for Big Tech look like so much projection coming from a cast of characters who have contributed to a half-century of tilting copyright law ever more in favor of their preferred industries. 0 1 • 6 ili Brandon Butler * @bc butler• 6/8/21| G... Anyway, for a longer, deeper, more scholarly defense of the Restatement project, see @JSilbey and @JeanneFromer journals.library.columbia.edu/ index.php/lawa.... I just needed to vent a bit about the storm of foot-stomping and grousing we've seen this week. 0 1 O 14 ihll 贝 Brandon Butler • @bc butler • 6/8/21 O... Happily, it seems that the good folks at ALl are not much moved by all the stürm und drang from industry blogstadvertorials or even the repeated earnest concern-trolling of a few academics. Hopefully the project can move forward, now, with (fun!) discussions of substance. • 1 17 M 5 个
November 14, 2025 at 2:14 PM
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Screenshots of the 2021 thread, for folks who can’t see it because of X’s stupid policy of hiding threads from non-users (1/2):
Text of tweets: I wanted to say a few words about the @AmLawInst Restatement of Copyright, just ahead of the vote on it this afternoon. It's probably too late —unlike the well-funded and well-organized opponents, who have placed editorials in DC outlets and seeded stories with industry press, 5:48 PM • 6/8/21| supporters of the Restatement (whoever we are) have said little in public. I'm not aware of any organized effort by those of us on the public interest side of © policy wars to defend the Restatement; I guess our cabal is so secretive, even we don't know about it. Anyway, as an advisor (one of many, many folks, from many perspectives) to the project, it has been my impression so far that the actual technical disagreements re drafting that have unfolded are minor and amicably resolved. IOW, no one has yet raised a 5AM Fri Nov 14 Brandon Butler • @bc butler • 6/8/21 O... substantive objection to the draft that was intractable or even particularly controversial. Maybe that day will come (fair use awaits, after all), but so far, so good. I've seen no evidence, yet, that this project can't move forward productively if people can discuss 02 Illl 贝 Brandon Butler • @bc butler • 6/8/21| O ... substantive issues in good faith. Where the good faith seems to evaporate, however, is in the meta-conversation about whether there should be a © Restatement at all. Arcane arguments about the difference between statutory and common law sound profound, but don't survive Q 1 O3 ill 贝 Brandon Butler • @bc butler • 6/8/21 У... even a cursory encounter with the actually-existing Title 17, which is shot through with provisions that cannot be applied without reference to a rowdy body of case law-exactly the kind of stuff a Restatement can render more coherent and manageable. 0 5 贝 Brandon Butler • @bc_butler • 6/8/21| Consider for a moment that there exist not one, not two, but at least three major multi-volume treatises purporting to explain (one might say "restate") copyright law to the confused attorney or judge. The savvy lawyer knows that each of these has a POV, and if you're looking 14 • 6 个 O ... 5 AM Fri Nov 14 Brandon Butler • @bc butler - 6/8/21 for something close to the truth, you probably need to check them all and triangulate. If the statute is clear and speaks for itself, how can there be a market for these, and an appetite to check them all and weigh them up? And wouldn't a Restatement drafted and advised by a 01 0 3 ilall 贝 Brandon Butler • @bc butler - 6/8/21 diverse and distinguished group of experts (incl. almost all of its erstwhile critics) and approved by a learned group like ALl add something new and useful to a secondary literature dominated by the solitary opinions of four men, two of whom are named "Nimmer"? Q 1 09 ill 贝 Brandon Butler • @bc_butler • 6/8/21 The objections from current and former Copyright Office folks ring hollow to me (and not just because of who currently pays the former officials' salaries). If the statute speaks for itself, why does the Office publish (and regularly revise and update) Q 1 セ1 08 ill 贝 L Brandon Butler • @bc_butler • 6/8/21 a 1300-page Compendium and a laundry list of Circulars and other explainers laying out the Office's preferred interpretations of (presumably ambiguous parts of) the Act? • 1 贝 Brandon Butler • @bc butler • 6/8/21| Ironically, some folks seem to want to vest the Copyright Office with a power not vested in it by the statute or the courts: exclusive jurisdiction and deference as restater of the law. • 1 L1 2| • 10| ill 贝 L 9... Brandon Butler • @bc_butler • 6/8/21| O ._ If 'the statute speaks for itself' doesn't survive encounter with the statute, some of the other objections don't even survive encounters with themselves. For example, one piece intones that Justice Scalia didn't trust the ALI (ringing a Pavlovian bell for conservatives...), • 3 ill Brandon Butler • @bc butler • 6/8/21| then argues that a restatement will somehow erase the "rich legislative history" of the various Copyright Acts (a sop to legislators, one presumes). I'm not a Scalia expert, but it seems... opportunistic to invoke St. Nino AND deify legislative history in the same piece. • 4 ill 贝 Brandon Butler • @bc_butler • 6/8/21| O ... More generally, the vast majority of the objections to the project amount to ad hominem attacks on the lead authors, mainly allegations that they are partisans in the copyright wars. But of course all of these objections are lodged by...partisans in the copyright wars! セ1 • 6 ili 贝
November 14, 2025 at 2:13 PM
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ACCESSIBILITY ALLIES! A fresh addendum to the @arlpolicy Code of Best Practices in Fair Use for Academic and Research Libraries brings the 2012 document up to date, adding positive caselaw and statutory updates! www.arl.org/wp-content/... #a11y #fairuse
Screenshot shows the first page of the ARL Code addendum, which includes confirmation of fair use's application to accessibility under HathiTrust, Section 121's applicability to research libraries, and updates to Section 121 from the Marrakesh Treaty Implementation Act. Screenshot of the second page from the new Addendum, which explains that the HathiTrust opinion also confirmed fair use's availability for accessibility work involving non-textual materials, and improvements to Section 121 in this regard from the MTIA.
October 30, 2025 at 1:00 PM
bb.usefairuse.com
Again, via PK's excellent post, here's what happens when you train an AI model:
publicknowledge.org/piracy-vs-f...
The critical point: Al models do not store or distribute the copyrighted works they are trained on in the way pirates do. Instead, the training process works more like this: • The system ingests the training data and converts it into mathematical representations (vectors, weights, and parameters). • The original works are not preserved in the final model. Instead, the system captures statistical information about how words follow one another, how images are composed, or how sounds combine into melodies. • Once training is complete, the model generates new outputs based on probabilities, not by reproducing specific works or parts of them. This training process almost always requires making temporary copies of copyrighted works during the process. But the end product is not a copy of those works; it is a statistical model capable of generating new, original content.
September 17, 2025 at 4:11 PM
bb.usefairuse.com
Does AI training look like that? Not at all. It doesn't do the two most important things a pirate does: make and sell unauthorized copies of works. As Patrick explains, what AI training does instead is radically different:
September 17, 2025 at 1:00 PM
bb.usefairuse.com
We all know what piracy is: making and selling copies of entire works without payment or permission. Piracy hurts rightsholders because people buy or download a copy of their work from the pirate instead of buying one from them.
September 17, 2025 at 1:00 PM
bb.usefairuse.com
This is #copyfraud. Like the bullshit FBI warning on DVDs and the "No copying allowed without express permission" warning in the front of books, it's literally false. But OK, sure, why not.
# NOTICE: all crawlers and bots are strictly prohibited from using this # content for AI training without complying with the terms of the RSL # Collective AI royalty license. Any use of this content for AI training # without a license is a violation of our intellectual property rights. License: https://rslcollective.org/royalty.xml
September 10, 2025 at 6:59 PM
bb.usefairuse.com
Bobbs-Merrill tried this in 1908, putting a tag on every copy of the book The Castaway that read "The price of this book at retail is $1 net. No dealer is licensed to sell it at a lower price, and a sale at a lower price will be treated as an infringement of the copyright."
September 10, 2025 at 6:40 PM
bb.usefairuse.com
2️⃣ We also have an infographic for YouTubers worried that they can't be confident that their videos are fair use in order to issue a counterclaim: Flex your fair use rights like a pro by relying on the fair use best practices developed by pro filmmakers. www.recreatecoalition.org/infographic...
September 10, 2025 at 1:43 PM
bb.usefairuse.com
If YouTubers want to rally around a one-word fix that would help them clap back against UMG and other copyright over-claimers, we have a suggestion: remove the word "knowingly" from Section 512(f) of the Copyright Act. That would *start* to put fair use on a level playing field.
September 10, 2025 at 1:43 PM
bb.usefairuse.com
Section 107 fair use rights have no such protection. The one part of the law meant to punish bogus takedown notices only applies if you can prove the sender *subjectively knew* their takedowns were bogus when they sent them. It's impossible.
Screenshot text from newsletter explains the high bar to recovering damages when fair users are harmed by excessive copyright claims.
September 10, 2025 at 1:43 PM
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First, Rick and his followers ask how this can be legal, and we explain why: Copyright has a double standard for liability. Section 106 exclusive rights trigger crushing penalties with strict liability, meaning you're responsible regardless of your intent. Just ask Anthropic:
Screenshot text explains the high statutory damages in copyright law and how that led to an exorbitant settlement against Anthropic in its legal battle over AI training.
September 10, 2025 at 1:43 PM
bb.usefairuse.com
This week's @recreatecoalition.bsky.social newsletter has 2 suggestions for YouTubers like Rick Beato, who raised the alarm over Universal Music abusing the ContentID system to send a steady stream of seemingly bogus copyright claims. us21.campaign-archive.com/?u=b444b538...
September 10, 2025 at 1:43 PM
bb.usefairuse.com
wonderful law review article on fair use's least-loved factor - the nature of the work used. In "Is That All There Is? Reflections on the Nature of the Second Fair Use Factor," Kasunic gets fair use exactly right.
kasunic.com/Articles/CJ...
While American copyright law grants a property interest in original works of authorship, that property interest is limited, not just in duration, but also in scope. An essential limitation on the scope of the copyright owner’s exclusive rights is the fair use of the work by others. Thus, while copyright provides limited property rights, the enforcement of these rights is a tort – the requirement of proving that the use of expression by another is wrongful. A fair use of another’s expression is not wrongful when it does not impede an author’s incentive to create. Notwithstanding the exclusive rights of the copyright owner, a fair use is not an infringement of those rights.
September 10, 2025 at 12:27 PM
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The first one, filed early, comes from longtime friend of Recreate, Professor @charlesduan.bsky.social, whose briefs have been cited in two previous SCOTUS opinions on IP. As usual, Charles' arguments are lucid and compelling. Find his brief here:
www.supremecourt.gov/DocketPDF/2...
This is not a patent case, yet patent law is crucial to it. Copyright law’s contributory infringement doctrine is closely linked to the parallel doctrine of inducement of patent infringement. Indeed, the “material contribution” test at issue is shared between the two. Patent inducement can thus guide this Court’s analysis. Patent law’s material-contribution analogue has long required a specific, unambiguous, affirmative act; that requirement is appropriate for copyright as well. And recent decisions by the U.S. Court of Appeals for the Federal Circuit, which have ignored this rule and “made a mess of patent infringement theory and doctrine” as a result, illustrate the dangerous consequences of failing to adhere to that rule, for both patent and copyright law.
September 5, 2025 at 3:31 PM
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Indeed! So, like, why break the internet for the rest of us?
www.nytimes.com/athletic/65...
September 4, 2025 at 2:32 PM
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Just how totally insane is the 4th Circuit's secondary liability ruling in Cox v. Sony—a decision now up on appeal at the Supreme Court? Combined w/ ©'s statutory damages, it's truly nuts. 😵 @CCIAnet.bsky.social has the numbers, and they will curl your hair. 🫠
ccianet.org/research/ca...
Screenshot shows excerpt from research report that concludes "* This resulted in a statutory damages to actual economic harms ratio of at least 1,445 to 1, and potentially as high as 481,695 to 1 in the Cox case." Also, in the recent Hachette v. Internet Archive case, plaintiffs "could have sought at least $690 billion (greater than the GDP of 172 IMF-tracked countries in 2023, and greater than the combined sum of 77 IMF-tracked countries' GDP) — and potentially up to $6.6 trillion dollars-one-fifth of U.S. GDP and more than the combined GDPs of about 144 IMF-tracked countries-from legitimate service providers who did not terminate the Internet Archive from their services"
September 4, 2025 at 2:23 PM
bb.usefairuse.com
I think there's plenty of room for fair use of copies sourced from shadowy sites, for the reasons Judge Leval explained over 30 years ago when he laid out the framework that still governs fair use today:
www.jstor.org/stable/pdf/....
Screenshot shows an excerpt from Pierre Leval's article "Toward a Theory of Fair Use," which culminates in this observation: ...The inquiry should focus not on the morality of the secondary user, but on whether her creationclaiming the benefits of the doctrine is of the type that should receivethose benefits. This decision is governed by the factors reviewed above - with a primary focus on whether the secondary use is productive and transformative and whether it causes excessive injury to the market for the original. No justification exists for adding amorality test. This is of course not an argument in favor of immo-rality. It favors only proper recognition of the scope and goals of abody of law.
August 28, 2025 at 2:21 PM
bb.usefairuse.com
A more accurate headline would be "Universal Pictures to frightened EU media studies professors: we'll sue you if you study our movies." Very brave, very good for culture. Stay classy, Universal. www.hollywoodreporter.com/business/bu... via @thr.com
In some countries, the warning cites a 2019 European Union copyright law largely opposed by major tech companies that allows creators to opt out of having their material used in scientific research by explicitly reserving their rights.
August 8, 2025 at 9:09 PM
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Wow, Patreon just hit an extraordinary benchmark, paying out more than $10billion to creators since its founding in 2013. Founder @jackconte.bsky.social's optimism is a breath of fresh air.
www.axios.com/2025/08/05/...
In terms of being a creative person, having control, having leverage, getting to keep your IP [intellectual property], getting to keep your copyright and building a business around what you love and what you're passionate about — This is the best time in the history of humanity to do that
August 6, 2025 at 3:49 PM
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I made a schedule for Birmingham's Sidewalk Fest (August 19-24) with only Jaszi Butler clients on it. 😎 You could spend the whole fest just watching movies we worked on - and I can vouch, they're all amazing.
sidewalkfest.com/festival/si...
August 1, 2025 at 12:04 AM
bb.usefairuse.com
I suspect we will see more and more of these little conversions re AI and art, kinda like how most grumpy rock dudes eventually recognized hip hop is legit art. But they may not all be as eloquent in their flip-flopping as Nick Cave is here. pitchfork.com/news/nick-ca...
Roughly once a week, Nick Cave blogs about music, religion, grief, and the infernal state of world affairs through the medium of fan correspondence in his Red Hand Files newsletter. His meatier responses become news stories, and few have traveled so far, or with such fervor, as his 2023 diatribes eviscerating ChatGPT. First, that January, he portrayed a lyric “in the style of Nick Cave” as an omen of the apocalypse and “a grotesque mockery of what it is to be human.” A few months later, Cave elaborated that any lyricists using artificial intelligence were “participating in [the] erosion of the world’s soul and the spirit of humanity itself.” But that was before his friend Andrew Dominik made a music video for Nick Cave & the Bad Seeds’ “Tupelo” featuring a floating AI Elvis. Dominik—a longtime Cave collaborator and the director of Blonde, The Assassination of Jesse James by the Coward Robert Ford, and One More Time With Feeling—had been at work on the video behind Cave’s back. Presented with the result on the song’s 40th anniversary, Cave decided it was “a soulful, moving, and entirely original retelling of ‘Tupelo,’ rich in mythos and a touching tribute to the great Elvis Presley.” Cave found that Dominik’s AI-animated photographs of Presley “had an uncanny quality, as if he had been raised from the dead, and the crucifixion-resurrection images at the end were both shocking and deeply affecting.” He and his wife, Susie Cave, he added, “were blown away. As I watched Andrew’s surreal little film, I felt my view of AI as an artistic device soften. To some extent, my mind was changed. ‘It’s a tool, like any other,’ said Andrew.” Far from coming away from this religious experience with his tail between his legs, Cave emerged with a renewed understanding of his own brilliance. “I believe that the ability to change one’s mind is the very definition of strength,” he wrote. “We pursue the truth wherever it may lead, remaining flexible and humble enough to adjust our views as new evidence emerges, regardless of how uncomfortable that may feel. It is ultimately a form of resilience, not a sign of weakness. Rigidity breaks; flexibility endures.” Watch the video below.
July 30, 2025 at 2:59 AM
bb.usefairuse.com
2c cont'd And finally, the coup de grace, even if the competition is effective, is it more effective because of the inclusion of the plaintiff's work than it would be without it? This, to me, could be fatal to many, perhaps most claims of market dilution.
June 26, 2025 at 3:53 PM
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2c cont'd If the tool does make works that compete, what is the impact of that competition? Will people really buy what amounts to slop rather than the works in the training data?
June 26, 2025 at 3:53 PM