"Tim busts out a great working definition for fair use that simple enough to understand that it can be reliably followed by casual remixers and users of content, but not so simple as to be idiotic: if it adds new value, it’s fair use; if it substitutes for the original, it’s infringing."
The problem with this is what amounts to "adding new value" – and, more importantly, adding value to what? Does sampling a record and using it, uncredited, in a remix "add value" to the original? No, of course not. In fact, using it credited may well not add value either.
Does Gawker’s use of the Tom Cruise scientology video "add value" to the original? Of course not – if anything, it removes value, both to Cruise personally and to the CoS. Of course, you can say that Gawker’s using it is fair use as it’s newsworthy – but that adds a second rule to what is and is not fair use.
If, of course, what Cory and Tim mean by "adding value" is simply "creating something of value from the copyright material" then that’s a different matter – but it means that virtually any use of copyright material is permissible. If I take one of Cory’s books, put it in an original cover, print it and sell it I’ve "added value" – so it’s fair use, and I don’t have to pay anyone. Right?