Note on Best Practices in Fair Use

The May 31 2011 e-version of the Chronicle of Higher Education was filled with copyright law-related stories, including this one about the work of Pat Aufderheide and Peter Jaszi at American University in connection with “best practices in fair use” projects.

I particularly liked the concluding section of the piece:

Sandra Aistars, executive director of the Copyright Alliance, a group representing copyright holders, says her organization does not recommend Mr. Jaszi and Ms. Aufderheide’s work or any guidelines, saying the doctrine is too hard to sum up briefly.

“I would hate to see something like this lead a normal consumer to have a false sense of security over something and push the envelope into something that gets them into trouble,” she says.

That view drew an emotional response from Ms. Aufderheide: “When people talk about the risk, it makes me think, Why are you scaring my friends?”

People deal with fuzzy laws all the time, she argues. “Obscenity is impossible to define, and yet people have some idea of when they’re committing an obscenity or not.”

“You could walk through your life being haunted by the specter of litigation in every aspect of it. But people don’t usually do this in their other free-speech rights.”

That suggests to me that many copyright owners both like the fair use doctrine and like to promote its ambiguous, fuzzy character.  That tactic reminds me of IBM’s and Microsoft’s old “Fear, Uncertainty, and Doubt” (FUD) tactics. Better safe than sorry, one might say in both contexts, and the “sorry” part requires the presence of a weak, fuzzy straw man.  That’s a hypothesis (copyright owners’ preference for a weakly specified fair use doctrine).   I wonder whether there is better evidence for it.

Here’s a link to the fair use website at the AU Center for Social Media.  It includes links to all of the “best practices” projects produced so far, including the most recent one:  The Code of Best Practices in Fair Use for Poetry. Disclosure:  I have been a reviewer on just about all of these projects.

Pat Aufderheide and PeterJaszi have a book forthcoming from the University of Chicago Press, titled “Reclaiming Fair Use.”   You can pre-order it at Amazon.com.