The War On Fair Use

Somebody somewhere, probably a lawyer in the entertainment industry, has a list titled “rabid fair use advocates” and David Rothman is near or at the top. Not that I mean that as a criticism, or that Mr. Rothman would take it as such. It’s just a likely fact. Today, however, I’m playing a game by quoting his post about the war on fair use in full:

Doubt there’s a war against fair use? Let me reproduce the following from Ivan Hoffman, an entertainment lawyer whose posts appear regularly on Studio B’s CBP list for computer book writers:
[quote]Fair use is troubling to those who are uncomfortable with lack of certainty since fair use requires a case by case analysis. If you are seeking a bright line rule, then it should be to never rely on fair use since to do so is legally very uncertain and there is virtually no way to tell, in advance, whether any particular use is going to be upheld as a fair use. Always seek a license. And this applies to all uses of protected materials, not merely sound recordings.

Is Hoffman reflecting reality, or is he making work for himself and fellow attorneys by discouraging writers from using a valuable tool? How durable will the fair use doctrine be if no one dares to use it? Any lawyers care to reply? What about the First Amendment implications?

“Fun with Fair Use” Department: Whoops. Guess I should have checked before quoting the above.[/quote]

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