In late April, 1997, Bruce Lehman, Commissioner of Patents and Trademarks, publicly stated that the Proposed Guidelines negotiated by CONFU participants had failed to achieve consensus support. In May, 1997, at its third "final" meeting in Washington, D.C., CONFU participants concurred. None of the Proposed Guidelines would survive the comment and endorsement process that ended in May.

Since the Multimedia Guidelines had a life of their own apart from CONFU (see Background Information), their proponents indicated that they were alive and well and ready for use, but the future for the other two (Images and Distance Learning) is uncertain. The Reserve Guidelines had already fallen by the wayside early last fall (1996).

What happened and what does it mean
for fair use in the electronic environment?

CONFU Background Information and Guidelines
The Final Report of the PTO
Other Guidelines Sites

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[Ninety-three] organizations representing for-profit and nonprofit publishers, the software industry, government agencies, scholars and scholarly societies, authors, artists, photographers and musicians, the movie industry, public television, licensing collectives, libraries, museums, universities and colleges spent untold amounts of money and more than 2 1/2 years of their time and their energy to find agreement on the scope of fair use in various electronic contexts. Now it seems that not enough of their constituents, and in some cases, not even the participants themselves, agreed with the result to qualify the Proposed Guidelines as consensus documents. Forgive the overgeneralization, but users thought the Guidelines were overrestrictive and copyright owners thought they were giving away too much.

Does this mean that no one should use the Guidelines?
Does it mean that the Guidelines do not represent a "safe harbor" where users are free from the threat of lawsuit for infringement?
Does it mean that if you follow the Guidelines you may be undercutting your rights to a more expansive scope of fair use?
Does it mean that any guidelines you might devise on your own are risky business?
Will it be safe to follow proposed "User Community Principles" and educator- and librarian-generated "Best Practices" concerning fair use?
Where is the line between fair and unfair use?
If you are a copyright lawyer, what should you do to guide those who depend on you to draw the line?
Are all bets off? Will the gloves be coming off soon?

One thing seems clear: there is very wide and deep disagreement about the scope of fair use. There are only a limited number of ways to get beyond this seeming impasse.

Negotiation
Litigation
Legislation
The End Run

Negotiation

The failure of CONFU suggests that negotiation over the scope of fair use has failed.

Litigation

Deep disagreement over the scope of fair use also affects the litigation alternative. Courts may remit damages even when they find infringement where the infringer reasonably believes that what he did was a fair use. Consider this:

Of 13 judges on the Sixth circuit, 8 believe that commercial, for-profit preparation of coursepacks by Michigan Document services is not a fair use; 5 believe it is.
The Sixth Circuit remanded the MDS case for reconsideration of the lower court's assessment of damages. The Court apparently felt that MDS's belief that what it did was fair use was reasonable under the circumstances.
Major national organizations disagree over whether the Electronic Reserve Guidelines represent a reasonable scope for fair use in that context. Some think the Guidelines are too narrow. Others think they are too broad.
There is so much disagreement over whether the Image, Distance Learning and Multimedia Guidelines fairly describe the scope of fair use in their respective contexts that CONFU failed to produce consensus documents in these areas after 2 1/2 years of work.

In this climate, plaintiffs are unlikely to get damage awards against nonprofit educational institutions that follow reasonable rules about fair use. Lawsuits are expensive, time-consuming, ugly affairs, but if they "clarify" that the scope of fair use is narrower than many thought, they may be well worth the effort, even if the plaintiff does not win the big money. On the other hand, if they clarify that the scope of fair use is broader than many thought, they could be a huge mistake for the plaintiffs. Litigation is probably not the best way to clarify the scope of fair use.

Legislation

Legislation is negotiation with tons of money thrown in. It could work well for copyright owner interests, really well if the user community is not even at the table. We may not have a choice about whether we undertake this alternative. If legislation is introduced that affects user interests, we must join in.

The End Run

But, in the end, the most important game will be the end run. This is where it all comes down to dollars and cents. Users describe what they want to do with a copyright owner's work, and the copyright owner states a price for that use. There may be negotiation over the permitted uses and the prices, but not over what is or is not fair use. This is why licensing matters. This is the future. This is not to say that mentioning fair use in a license agreement is unimportant. But, it is to say that it probably will not affect the bottom line and it should not affect the description of permitted uses. It should be CLEAR what users can do, and a statement like, "fair uses are permitted," is NOT CLEAR. Go for clear.

The Questions

So, back to the questions at the beginning of this article, and this time, some answers:

Does this mean that no one should use the Guidelines?
No. They are a good starting point.
Does it mean that the Guidelines do not represent a "safe harbor" where users are free from the threat of lawsuit for infringement?
The nature of the disagreement over the Guidelines means that they technically cannot be considered a safe harbor. On the other hand, there may be practical considerations that lessen the likelihood of a lawsuit against someone following the Guidelines, since they are probably more conservative than anything that will be developed by the user community in their wake.
Does it mean that if you follow the Guidelines you may be undercutting your rights to a more expansive scope of fair use?
Yes, but no one knows for sure.
Does it mean that any guidelines you might develop on your own are risky business?
If you use good judgment and have a reasonable basis for your guidelines, you probably are no worse off than if you use the CONFU Guidelines. It's sort of like every reasonable definition for fair use is fair game for a lawsuit, but at the same time, subject to the good faith defense. Just be reasonable.
Will it be safe to follow proposed "User Community Principles" and educator- and librarian-generated "Best Practices" concerning fair use?
There may be safety in numbers, and it certainly feels better to be doing what everyone else is doing, but there are no guarantees.
Where is the line between fair and unfair use?
There is no line. Don't look for one.
If you are a copyright lawyer, what should you do to guide those who depend on you to draw the line?
I would recommend participation in the ALA, et al's efforts to develop user community principles and best practices and stick fairly closely to them. Nevertheless, I've already developed a Comprehensive Copyright Policy for U.T. System and I am pretty comfortable with it, even though I know there are those who may disagree with my judgment. I have done much research and thought long and hard about the issues and this is what I think is fair use.
Are all bets off? Will the gloves be coming off soon?
I don't think so, but it really depends upon how soon copyright owners figure out how to make a living in the electronic environment. They are really scared. When they get their bearings, things should settle down. It's their livelihood after all.

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Last updated: December 22, 2004

CONFU: The Conference on Fair Use