by: danah boyd
Fair use is an uber tricky legal issue. It is meant to provide protection for people to use copyright material in limited ways without seeking permission. (For example, fair use allows academics to comment on copyrighted content as part of their work.) The problem with fair use as a legal doctrine is that it's defense-only. Anyone can sue you for violating their copyright and you can declare fair use, but you will still have to pay onerous legal bills to defend that claim.
Given the typical economic inequality between copyright holders and fair use practitioners, just the threat of a lawsuit tends to silence fair use practitioners. It's really a sad state of affairs. The lack of clear guidance means that creativity tends to be squelched as copyright holders systematically manage a campaign of terror, even when they're not in the legal right of way.
Fair use is becoming a bigger and bigger issue as more people get involved in creative acts that involve others' content. Fan fiction, video remix, video parody, etc. are all practices that involve others' copyright, but are also arguably fair use. While these practices predated the Internet, the Internet makes them much more visible. This means that more people get to see such creativity, but it also means that the copyright owners tend to get more outraged. And they tend to go on cease and desist rampages, even when the practitioners are engaged in fair use practices.
There's currently no legal solution, but some of the best minds in cultural practice and law have come together to develop a "Code of Best Practices in Fair Use for Online Videos" (organized by the Center for Social Media). This document is not a legal instruction guide, but a set of best practices. This document also opens up an opportunity for good dialogue about the relationship between law/policy and cultural practices. I commend Pat Aufderheide, Peter Jaszi, and the members of the committee (Michael C. Donaldson, Anthony Falzone, Lewis Hyde, Mizuko Ito, Henry Jenkins, Michael Madison, Pamela Samuelson, Rebecca Tushnet, and Jennifer Urban) for putting together a tremendous set of guidelines for practitioners. Hopefully this will help everyone involved.