Deep Dive: Legal Backgrounder on the Best Practices in Fair Use and Their Validity

Peter Jaszi, Professor Emeritus, Washington College of Law, American University
December 2019

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Read the Code of Best Practices in Fair Use for Software Preservation

The basic outlines of fair use law are pretty well settled. It has been 25 years since the U.S. Supreme Court did a reset on fair use jurisprudence in Campbell v. Acuff-Rose, and almost 15 years since the launch of the Best Practices in Fair Use project. “Transformativeness” rules, and the courts have made the task of distinguishing those uses that are transformative from those that are merely substitutional straightforward.  It’s equally clear that uses that put copyrighted material in new contexts can qualify along with those that involve modifying it.  Likewise, fair use can apply to activities that don’t themselves involve creating new copyrightable content.  Notably, the approaches taken by the various federal Circuit Courts of Appeals have converged substantially, a state of affairs well represented in Authors Guild v. Google, Inc., 804 F.3d 202 (2015), where the Second Circuit relied on precedents from all over to seal its analysis. 

All this, however, leaves two questions open about the best practices project and its premises:

Those questions are addressed below.

The truism that fair use is a contextual, case-by-case inquiry does not automatically translate into a conclusion that its applications are hard to predict or unreliable.  Indeed, many institutions that rely on fair use have their own internal protocols that testify to the stability of the doctrine.  Here, for example, is a memo by the U.S. Patent and Trademark Office, explaining why its own copying of scientific articles is legal under fair use, because it is undertaken for “a new and different purpose than for which [they were] created.”   Because most users rely on fair use in a limited range of different contexts, the analysis that applies to one use case will tend to carry over to other similar ones.

More broadly, scholarly evidence for the predictability and reliability of fair use continues to accumulate. For instance:

In short, anyone who is interested in putting fair use to work can feel a high level of confidence that a conscientious, up-front fair use analysis will hold up if subjected to pressure, especially if it is grounded in a strong claim of transformativeness.

That said, why take an approach to determining fair use that is rooted in professional consensus, rather than (for example) negotiating standards with right holders or consulting legal experts?  The shortcomings of the former approach, which has given rise to various ill-fated fair use “guidelines” over the years, are chronicled in a 2001 law review article by  legal scholar Kenneth Crews, documenting how the use of negotiated guidelines, co-designed by rights holders with no stake in the mission of higher education or libraries, to establish fair use claims has repeatedly disappointed and frustrated educators and librarians. 

The affirmative case for community-based fair use standards is made by history. At the heart of this approach is the record of almost 175 years of fair use decision in the U.S. courts, showing that courts are influenced by evidence of professional consensus within communities of practice about what constitutes fair use. A good resource on this point and others relating to the growth in use of fair use best practices codes in the United States is a short book entitled Reclaiming Fair Use: How to Put Balance Back in Copyright Law (Aufderheide & Jaszi, 2d edition 2017, University of Chicago Press).  Complementary material also is available on our fair use homepage.

For further analysis of the trends in fair use, demonstrating the vitality of the best-practices approach, we recommend these materials:

As Professor Madison notes there also has been some criticism of Best Practices, with “some scholars express[ing] concern that the Statements tend to lock in backward-looking, customary interpretations of law and practice.”   Happily, at least to date, this fear does not seem to have materialized:  members of practice communities with Best Practices documents in place continue to think creatively about fair use, and to take account of the doctrine’s flexible, dynamic character.