[Air-L] Fair use analysis

[Bill Herman]

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-part-ii/

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.