[Air-L] Fair use analysis

[burkx006 at umn.edu]

On Jan 21 2008, Bill Herman wrote:

>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.

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
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