Dear Center for Social Media,
What do you think about using a “four factors” checklist (see this one from Columbia University for an example) to determine whether or not something is Fair Use?
First off, thank you for recognizing that users CAN come to rational and sound decisions about Fair Use. But we think there’s a better way to do it than with a checklist.
The problem is that the "four factors" aren't, in the law or judicial history, meant as a simple checklist. They were provided in the law as reasonable but not exclusive concerns, and not as a checklist but as a range of concerns, each one of which might have in any circumstance much more weight than the others. That's one big reason why they have not been particularly comforting to individuals having to make case-by-case decisions. And of course, Fair Use is a case-by-case decision.
In fact, the law on Fair Use was deliberately left unspecific, with the expectation that within these general considerations, communities of creation and use would develop their own practices. The problem has been that people don’t understand how their own user/creative community interprets the law. The codes of best practices in Fair Use developed through the Center for Social Media and the Program for Information Justice and Intellectual Property at American University (centerforsocialmedia.org/fairuse), which have been created by communities of creation and use and vetted authoritatively by a legal advisory board, have been extraordinarily successful at determining these interpretations and freeing people to employ their good judgment.
This has been far more effective throughout the fields served than a checklist-style “four factor” analysis on an individual basis, because the “four factor” analysis is difficult to interpret responsibly within any given creative community. The checklist is both mechanical and potentially limiting, and because the community judgment is powerful added information in court, should it come to that, and therefore it is a powerful lowering of any individual’s risk. The danger of checklists is in limiting people's understanding of the flexible, adaptable principle of Fair Use.
In addition, scholars in various fields have created codes of best practices in Fair Use; a code for film scholars is about to go up at cmstudies.org. (Their code for Fair Use best practices in teaching is already up.) Communications scholars are developing Fair Use best practices as well; if all goes well, they will be ready by next May. Finally, dance archivists have created one to guide them with standards for employing Fair Use in museums, archives and exhibition spaces.
Center for Social Media