CONFU: No surprise there

So you say that a conference intended to create guidelines for fair use was not successful? That the proposed guidelines did not pass the comment and endorsement process? Get out of town!

I kid, I kid. Kudos to the folks who put this conference together in the first place. Having guidelines for fair use of content is a great idea. I am sure that many people--librarians, educators, artists, content providers of all stripes--would appreciate clearer guidelines. Unfortunately for the CONFU folks, there were several issues already at play. Importantly, the copyright owners and content providers felt like the CONFU guidelines gave away too much, while users felt like the guidelines were too restrictive and that they got too little out of the deal. It seems as though it would be extraordinarily difficult to get people to agree on any terms related to fair use. (I find it hard to imagine almost any negotiations, but I'll get to that more when I discuss Harris's LicensingDigital Content.) Users and content owners are just on such different sides of the spectrum when it comes to using and protecting content. Users, even if they are trying to do right by the content owner by following fair use, are still using (i.e., copying for educational purposes, satirizing, etc.) the content in a way that content owners might not necessarily want. If it were up to the content owners, there might not be fair use at all. If it were up to the users, fair use rights might be greatly expanded.

Those two positions are hard to negotiate (again, which is why it is no surprise that this meeting of the fair use minds ended in failure). But that is why we have government and laws, no? That is why fair use is encoded in statutes, court cases, etc., am I right? Ideally, courts and lawmakers will try to find a reasonable balance between the needs of users and content owners (although this seems hopelessly naïve). Fair use has no "bright line rules."* It is up to the content users and owners to do what they will and duke it out in court if there is a disagreement. This means that no one side will have their needs enshrined in fair use law. The gigantic downside is that you need to go to court to have someone tell you who is right...and now we are back to where the idea for CONFU started, I'm sure. This begs the question of should there be "bright lines" for fair use? I think the answer is no. I think one side would inevitably lose something automatically. CONFU guidelines skirted too close to this notion of laws set in stone, and I think that is why the meeting disintegrated.

CONFU points out there there is a world of disagreement when it comes to fair use standards. For now, users are relegated to using their own (hopefully) good judgment when re-using materials.

*Incidentally, that is one of my favorite phrases learned in library school.