Fair use analysis
Thanks to Christine Greenhow and Dan Burk for the website referrals. In the same vein of helpful sites, I’d also recommend the Stanford Copyright and Fair Use Center, at: http://fairuse.stanford.edu/ As regards the finer points of copyright discussed thus far, I also “don’t want to bore the list,” but I’d like to invite those who are interested in following the spirited debate about fair use to go to this rather extended blog post: http://www.shoutingloudly.com/2008/01/21/internet-researchers-and-copyright-... Comments welcome. However, here I would like to rebuff Prof. Burk’s statement that “its virtually impossible for the average person to have any sense of whether a given use is fair or not.” While fair use is very murky in many circumstances, this cold statement that “average” people can’t possibly learn enough to know whether fair use applies in their case is untrue, and it unnecessarily chills speech. Knowing in some broad sense what counts (or might count) as fair use is possible and important for anybody who produces information. For instance, nobody should sit around wondering whether quoting 50 words from a journal article in one’s scholarly writing will be fair use. It is. My fellow Ph.D. candidate didn’t need our guidance to find out whether the same guidelines would govern similar uses of list discussions, but asking the list was probably the easiest way to do so. With a little work, an average person can find an accessible introduction to copyright and get a reasonably good sense of how to determine what else counts as a fair use. In addition to the above websites, I recommend Stephen Fishman’s book, The Copyright Handbook, from Nolo Press. Most people in fact know little if anything about fair use, but it’s not particle physics; average people (not to mention the above-average lot on this list) could get a decent sense with a little investigation, and this basic understanding would provide helpful guidance on a number of fair use questions. There will always be gray-area cases, especially in this area. Ask an attorney if you’re unsure. But don’t write it off as impossible.
On Jan 21 2008, Bill Herman wrote:
However, here I would like to rebuff Prof. Burks statement that its virtually impossible for the average person to have any sense of whether a given use is fair or not.
While fair use is very murky in many circumstances, this cold statement that average people cant possibly learn enough to know whether fair use applies in their case is untrue, and it unnecessarily chills speech. Knowing in some broad sense what counts (or might count) as fair use is possible and important for anybody who produces information.
Sorry, Bill. But it is absolutely true. As Larry Lessig is fond of saying, "Fair use is the right to be sued." You never know if a use is fair until a judge tells you so. I don't want to come across as saying "These copyright lawyers are trained professionals, kids, so don't try this at home." Because I do think it is important for people to think about copyright and fair use. But the problem runs much deeper than that. The fact of the matter is that copyright law, as my friend Jessica Litman likes to point out, is so complicated that even copyright lawyers don't understand it. Larry Lessig and Jessica Litman don't understand it. I don't understand it. The Register of Copyrights (heaven knows) doesn't understand it. If you think you understand it, mazel tov. Pardon me if I'm skeptical. That doesn't mean that you shouldn't think about it. There are lots of things that we don't understand that are worth thinking about. But it does mean that you have to get over thinking about it in terms of "right" or "wrong" or even "grey" answers. It doesnt work that way. There are only analyses that are more or less defensible. Nice try on the blog analysis btw. -- Dan L. Burk Oppenheimer, Wolff & Donnelly Professor University of Minnesota Law School 229 19th Avenue South Minneapolis, MN 55455 ********************************** voice: 612-626-8726 fax: 612-625-2011 bits: burkx006@umn.edu
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