Fair use in copyright law is a one of the more challenging and
unpredictable legal tests around. Even those of us who frequently
deal with it find it difficult to provide hard-and-fast guidance.
As I wrote a few years ago, it's simply
not possibly to honestly give simple, clear, advance fair use
guidelines for the multitude of situations that come up. To put it
even more bluntly, as Judge Richard Posner did at a recent Chicago
Bar Association seminar, the statutory definition is "totally
useless."
Against that background, what do we make of the interesting
tidbit in the Obama Administration's annual report on
protecting U.S. intellectual property rights in the digital age,
the "2013 Joint Strategic Plan on Intellectual Property
Enforcement"? The administration, recognizing that IP
enforcement "should not discourage authors from building
appropriately upon the works of others," plans to
"educate authors on fair use." How exactly? Why, by
"publish[ing] and
