 Librarians are actually very lucky. They have entire sections of the Copyright Act that are just for them. Section 108 is literally exceptions just for libraries and archives. Section 110 is exceptions just for teaching, right? So these very specific exceptions are really helpful and useful for librarians and they give you very clear guidance. You know, three pages is the right amount, four pages is too many, right? It tells you exactly what you can and can't do. And if you can live within those fairly tight strictures and you're only talking about these very particular behaviors that were important to Congress in 1976, you're fine, right? But things change. The world moves on since 1976 and there are practices now emerging that Congress wouldn't have and couldn't have foreseen. There's always been a recognition that you need to have specific exemptions and then the more general flexible fair use. And that is particularly true in a time like now when there's rapid technological change, the specific exceptions simply are not adequate to provide, to allow libraries to do everything they need to do to serve their users. So it's a really popular misconception that if you have a specific exception for your community like librarians do with section 108 that describes a handful of ways that your community can use copyrighted materials without asking permission, that's it. And you cannot make recourse to fair use to do other things. But that misconception is completely false. In fact, Congress, from the very beginning, in 1976, Copyright Act, it's clear in the legislative history of that act that they always meant for fair use to be available to librarians. And in fact, if you look at the text of the statute, fair use is all about education and scholarship and criticism and commentary. So of course fair use is going to apply in situations that are quite similar to situations described in section 108 and the other specific exceptions. That's on purpose. Fair use describes a wide variety of things that you can do if you're willing to think about it, if you're willing to go through the kind of exercise that we're going through with the Code of Best Practices. And then those exceptions pick out safe harbors. They tell you if you make two copies you're definitely safe. If you do it this way, you're definitely safe. But it doesn't tell you that you can never leave the harbor, right? And sometimes you need to leave the harbor. That is what fair use is all about. And that's what we hope that this Code is going to empower you to do. The Copyright Act is not perfect. In fact, it's far from perfect. The Copyright Act has the terms are too long. The exceptions are too narrow. You know, there are plenty of things that need to be changed about the Copyright Act. And people should work to make those changes. Fair use, however, is such a wonderful doctrine because it gives us a way forward in the meantime. That is, it allows flexibly for new uses that, you know, maybe it would be nice if we could get Congress to tell us, you know, use this, you know, do it this way and it will always be legitimate. But what fair use does is it says, you know, if you are making culturally important uses and you walk through the factors and you do the analysis, you can go forward. And so it's great about fair use is you don't have to wait around for this, frankly, very difficult process of reform. You can make important uses now. And we can't wait, right? Library users need access to library collections. They need to go forward with interesting and new projects based on those uses. And we can't wait for Congress to come together and have a sort of rare rational moment and make big, huge, important changes to the law before we do those things. We've got to do them now. And that's actually what fair use is meant to accommodate. It's meant to be a flexible doctrine that will allow important new uses despite whatever other limitations there are in the Copyright Act. Fair use is an equitable doctrine, meaning it was a judge-made law involving balancing of equitable factors. It's this flexible doctrine. And it is very convenient if the Supreme Court says this kind of use is a fair use. Then you know, right? Then you know once and for all that if your use looks exactly like that use, you're in the clear. The problem is if you stray at all from exactly the kind of use that a judge endorses, you're suddenly once more into the realm of risk, right? You're once more into the realm of deciding and having to make a real judgment call about whether this is a fair use and doing all the same kind of decision making that you're going to do before the court makes that one decision. So the value of precedent shouldn't be underestimated for the folks that are clearly within the precedent. But once you start straying from that precedent, again, you're going to have to do this kind of thinking and working. You're not going to get a free pass based on a single test case that's going to cover all the different kinds of things, frankly, that libraries need to do. Fair use is risky if you don't know what you're doing. If you've got a good set of best practices and some broad understanding of the law of fair use, it is not a risky concept. There are cases that are close cases and most large institutions want to avoid that. But there's a huge area that is safe harbor and then between safe harbor and fair use but risky. There's also a big, big piece of real estate. So yes, you can always wander into risky territories whether it's using your credit card or walking across the street or any one of a number of daily activities. But being knowledgeable can keep you in that safe area. The whole point of a code of best practices is getting together and deliberating thoughtfully about the risks involved and what are rational risks to take relative to the practice and the value of the mission. So don't believe that fair use is inherently risky. All law is inherently risky, frankly. And if you're a rational person, you can take that risk into account and weigh it and go forward based on the value of the mission that you have. Even highly progressive critics of copyright law have sometimes referred to the fair use doctrine as being vague, uncertain, and difficult to imply in practice. I hope those criticisms may be heard less widely now that the best practices project has stepped in in some fields and now in the field of library practice to bridge the gap between this general flexible and potentially dynamic statement of the law on the one hand and the needs of practitioners to be able to make decisions on the basis of predictive information on the other. We're never going to get fair use down to a formula, and that's a good thing, because if we were, we would freeze it in whatever position we had chosen to take that snapshot, so to speak. But we can, we should, and in a variety of fields we have made the process of arriving at reliable decisions about fair use, far less mysterious and far less frightening than it may have been in the past. As part of the fact that it's flexible, fair use is going to apply differently across different situations. And a lot of times you'll hear that fair use has to be a case by case analysis. You have to look at it one book at a time or one movie at a time. Is this movie the right kind of movie for fair use? And that's actually a canard. In reality there are very well established doctrines in fair use, very well established practices in fair use where whole swalls of copyrighted works are taken advantage of and used in a fair way without doing this case by case analysis. So internet search is a great example. Google just indexes the whole web. They do it automatically all day, every day, they just copy and it's all copyrighted and they just suck it up. And they copy it, they put it on their servers, they use those things for profit even, my God, for profit. And yet, you know, and they don't have to do it case by case because there's a very good fair use argument for the general practice of web search. Web search is a transformative use. And so it's a transformative use no matter what the work is. It's a transformative use on website A, website B, and website to infinity, right? So the idea that you can't ever make a broad judgment about a practice because fair use has to be case by case is just false. If you search for copyright, you know, copyright question or copyright library or something, you will find guidelines. You'll find guidelines written by all kinds of interest groups. You'll find a guideline, you know, you'll find guidelines that have a kind of stamp of approval that looks sort of quasi legal, right? There are some guidelines that were literally sort of endorsed by Congress, right? In the late 1970s, when the 1976 Copyright Act was passed, some stakeholders and copyright came together and wrote up some kind of safe harbor guidelines and Congress said roughly, you know, well, that looks pretty good. We like that you guys came together, you know, go forth. That looks like a good way to go. But those guidelines themselves, even the most powerful seeming ones from the 76, you know, from when Congress literally endorsed it and said that looks pretty good to us, they were never intended to be the end all be all of how you apply copyright law to these educational situations. In fact, if you read some of these guidelines, they literally say these are safe harbors. These are clear places where you can act without any fear whatsoever, but you can always go beyond those places. My view of those guidelines is the same as my view of the guidelines at studios and and broadcasting networks. They're written by people who who are a little afraid and they want to control and make sure nobody does anything which could possibly get them in any kind of trouble or in any kind of gray area. And in fact, the truth of the matter is they don't always work. You could comply with the guidelines and still not fall within fair use. So they're they're a little misleading in their clarity, a little limiting in their specificity and in all respects outdated in my opinion. It's time to come to grips with what the law allows, let people know, and operate within that context. Over the last couple of decades, there's been a really helpful development in the law where judges are looking to what's called transformativeness to evaluate whether a use is fair. So if a use is transformative, if it repurposes the original work in a way that the creator didn't intend, if it's not taking advantage of that creator's own market, if it's not just literally competing with the original work by issuing copies, then that's a lot stronger case for fair use than if not, right? And that makes the fair use thinking very easy for certain kinds of users. So critics, scholars, those folks that are taking a piece of a work and putting it in a new work that they create, they have a much easier time thinking about fair use over the thanks to this evolution of a transformativeness doctrine. What do you do if you're not a creator, you're not an artist making a new thing? In fact, transformativeness doesn't only apply to transformative works, but transformative uses and transformative purposes. And to me the paradigm case of that is internet search. Google copies the entire internet, right? Copies the whole thing, puts it on its own server, and then crawls it to index it, and then serves you search results. Google doesn't create a new work, right? There's not some new kind of mashup of the web authored by Google. What Google gives you instead is a service. It helps you find information. Helping you find information is a transformative purpose. It's a transformative use of all those different little web pages, right? When I put up a web page about my dog, I'm not intending to help you find anybody else's web page. I might not even be doing a very good job of helping you find my web page. Finding web pages is not what I'm doing. Google, though, is helping you find web pages. That's a whole new project, and it takes some copying to get that done. So there are transformative uses and transformative purposes that don't create new works. You don't have to be a remix artist to be a fair user. And a lot of the works that libraries, a lot of the uses rather than the libraries make, are going to be transformative in that same way. They're going to be taking content that was originally published to entertain or amuse or published for one's scholarly peers and making them available for all new different kinds of different kinds of uses and in all new different kinds of contexts. And that's how libraries can take advantage of this transformativeness reasoning. In reality, your use is fair if the amount that you take is the right amount for your transformative purpose. And sometimes that means the whole thing. Sometimes you need the whole thing to do what you want to do. So artists who will take the entire image and then draw all over it. And they needed that image. They needed the whole original before they could start their project. They have to use the whole thing. There's a great Supreme Court case where Two Life Crew took the song Oh Pretty Woman and rewrote it as a kind of parody of Pretty Women about a big hairy woman. They had to take basically the whole thing. They took the chorus. They took the music. It is the song Pretty Woman. But that's how much they needed for their purpose. And the court said as much in the decision that if you need the whole thing to parody the whole thing, take it. And so that's that's that's the way fair use works. You can have as much of the thing as you need for your new purpose. Now you shouldn't take too much, right? So you should think about why you're doing what you're doing. What use is this material to my transformative purpose and tailor how much you use. Don't take more than you need. That's going to undermine your case. But sometimes you need the whole thing and it's just a myth that you can't take the whole thing when you need it. Any copyright owner always can make an objection to anyone else's use of their material as long as that use hasn't been specifically licensed. But the experience with codes of best practices so far suggests that librarians who choose to operate in future within the scheme that this code of best practices provides don't have a lot to worry about. Lawsuits are expensive to defend but they're also expensive to bring and they're risky to bring in situations where there's a good chance that the person they are brought against might actually win the decision. So our experience has been over six or seven years that so far no individual and no institution exercising fair use rights within the four corners of any one of the statements of best practices has been sued. Now threatening letters are another matter. They're cheap to write and fortunately they're also fairly cheap to answer and I wouldn't guarantee the librarians operating within the scope of the statement of best practices would be immune from threatening letters and calls but I would suggest that they will have an answer to those letters and an answer to those calls and that once that answer is given in all probability the controversy will be at an end. So there's a really there's a really clever kind of lawyer trick out there and you'll see it all the time that fair use is a mere defense. What does that even mean? Well it means that if you get taken to court you know the judge wants to hear about fair use at a certain part of the trial. What does that really mean for you as you're making a decision about whether to make a fair use? It doesn't really mean anything because frankly the people that are interested in protecting their rights that are concerned about whatever use you're going to make they're smart they're lawyers and they know that if they go to a judge and try to sue you over something that is obviously a fair use it's going to get thrown out the fact that it's a mere defense is not going to make a difference. It's kind of like telling the truth. Telling the truth is a defense if you're sued for defamation. Does that make it not a right? It just depends on the context. It's a useless semantic debate that makes me crazy partly because the oh it's a defense is used by people who want to convince you not to use your rights under fair use and it's scary to some people but it's it's not a debate worth joining. You get two sets of stakeholders with such different interests together what they can agree on if they can agree on anything is usually very little so the resulting guidelines are typically so restrictive that they don't really function very well for the purposes of the the users in question. Best practices on the other hand derive as we know from the shared understanding of the use community itself and that approach is potentially very potent indeed. There have been studies of what courts really look at in determining whether something whether a use is fair and and it turns out that that courts have often really looked at what is standard practice in an industry and so sort of like again it ultimately goes back to what's reasonable and how you define what's reasonable is what do people in that situation do. So if everyone in a given industry if you have industry standards industry practices that is a measure of what's reasonable in that industry again and that applies in all areas of the law and so there's no reason why the same standard shouldn't apply here to be sure people can challenge that and but they do that in other areas of the law as well they say well you're you know that this isn't reasonable and the industry standards are wrong but that is a a much higher burden to overcome the the notion that that there's something wrong with industry standards as so if you're operating within the context of the industry standards you're a lot safer than if you didn't have industry standards and everyone was kind of off doing their own thing. The way the code of best practices for libraries is structured it's going to be very very difficult for any practitioner who's read the code and understood it to make a large or comprehensive or far-reaching mistake very difficult for anyone to create a whole program that is somehow then as it turns out discredited as an example of fair use but it is perfectly possible in connection with this code of best practices as in other contexts perfectly possible to make an honest isolated mistake about how the principles apply in a specific instance or to a specific item and in those cases I think the answer is that the best thing to do is what one does when everyone makes an honest mistake which is to apologize and to do what one can to undo the mistake and I think in general that's going to be plenty because content owners are not interested in spending years of time and tens of thousands of dollars to to persecute someone who is honestly mistaken