How "What What (In the Butt)" unintentionally bolstered "fair use"

Ars Technica wrote an interesting article, How "What What (In the Butt)" unintentionally bolstered "fair use". "Wisconsin, state of my birth, I salute you for turning out federal judges like J.P. Stadtmueller. Stadtmueller is the man who waded into the swampland of fair use, South Park, and "What What (In the Butt)" to deliver a July 6 order that may break new judicial territory by citing South Park episode "Osama bin Laden Has Farty Pants" in its footnotes. And Stadtmueller has the proper feel for the absurd needed in any judge about to rule on a case involving the phrase, "You want to do it in my butt, in my butt?""

It's a nice summary of the case and issues. At the end it quotes Professor Kevin Smith's An easy fair use ruling, but with a message.

"What is significant here is that the judge made the fair use decision before there had been a trial. He examined the pleadings and found that everything he needed to make this easy call was already before him. Then he ruled favorably on a motion to dismiss the case on the basis of those pleadings (technically a “motion to dismiss for failure to state a claim”) and dismissed the case with prejudice (which means plaintiff cannot re-file it).

Librarians and other academics are often afraid to rely on fair use, even when there arguments would be strong, because of the expense of defending a lawsuit even when you win. Content companies often encourage that fear, reminding academics that fair use is a defense that can only be decided with certainty at a trial. While this case is a little bit unusual, it invites us, I think, to look at this “chilling effect” and perhaps lend it less credence."