Best Intentions: Reconsidering Best Practices Statements in the Context of Fair Use and Copyright Law

Journal of the Copyright Society, Forthcoming

Loyola-LA Legal Studies Paper No. 2010-41

19 Pages Posted: 19 Sep 2010 Last revised: 7 Feb 2024

See all articles by Jennifer E. Rothman

Jennifer E. Rothman

University of Pennsylvania Law School; Yale Information Society Project, Yale Law School

Date Written: September 16, 2010

Abstract

Private ordering is increasingly playing a role in determining the scope of intellectual property rights both as a de facto and a de jure matter. In this essay, I consider the best practices movement and its efforts to use private ordering to limit the scope and enforcement of copyright law. Best practices statements in the copyright context establish voluntary guidelines for what should be deemed fair uses of others’ copyrighted works. I identify some of the de facto successes of the best practices movement, but also raise a number of concerns about the project. As I have discussed elsewhere, the incorporation of industry practices and social norms into the law in the context of intellectual property can be problematic. The best practices statements have limited value for setting a standard for appropriate uses because they are very one-sided, having been developed without input from the content owners whose work is likely to be used. This one-sided approach to custom is misguided as a normative matter, but may also backfire because courts are more likely to incorporate the more restrictive and dominant practices that promote IP holders’ rights.

Not only are the best practices statements’ call for incorporating unrepresentative customs problematic, but the statements can also be critiqued on other grounds. First, the statements are misleading about the parameters of fair use law – a fact which is particularly concerning given that the intended audience is not composed of legal professionals. Second, some of the statements propose overly constraining limitations on fair use that will limit what can be made both as a de facto and de jure matter. The essay concludes with some suggestions for ways that the best practices project could be redirected in positive ways that support law reform and the defense of reasonable fair use claims without risking the downsides of the current statements.

Keywords: copyright, intellectual property, fair use, custom, best practices statements, norms, infringement, free speech, first amendment

JEL Classification: K10, K11, K13, K19, K39, O34

Suggested Citation

Rothman, Jennifer E., Best Intentions: Reconsidering Best Practices Statements in the Context of Fair Use and Copyright Law (September 16, 2010). Journal of the Copyright Society, Forthcoming, Loyola-LA Legal Studies Paper No. 2010-41, Available at SSRN: https://ssrn.com/abstract=1678274

Jennifer E. Rothman (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Yale Information Society Project, Yale Law School ( email )

127 Wall Street
New Haven, CT 06511
United States

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