Open Access News

News from the open access movement

Saturday, February 24, 2007

Pro bono legal services for fair-use defendants

In November 2005, American University's Center for Social Media released an important report, Documentary Filmmakers' Statement of Best Practices in Fair Use.  Now the Stanford Center for Internet and Society Fair Use Project is building on the AU guidelines with a stunning offer.  Quoting Lawrence Lessig

For films that are certified to have followed the Best Practices guidelines, Media/Professional [an insurance company] will provide a special (read: much lower cost) policy; Stanfordís Fair Use Project will provide pro bono legal services to the film. If we canít provide pro bono services, then Michael Donaldsonís firm will provide referrals to a number of media lawyers who will provide representation at a reduced rate. Either way, filmmakers will be able to rely upon "fair use" in the making of their film. The Fair Use Project and Donaldson will defend the filmmakers if their use is challenged. Media/Professional will cover liability if the defense is not successful.

This is a huge breakthrough....

Comment.  This beautiful offer amounts to free or nearly free insurance against fair-use liability for conscientious film-makers.  I'd love to see a similar project for conscientious scholars, especially in fields like art history that are crippled by copyright over-reaching.  We have to pull together three elements:  good guidelines for fair use, public-spirited lawyers willing to defend scholars who comply with them, and a public-spirited insurance company willing to cover damages in the rare case of liability.  (If the guidelines are good and eligible clients comply, then we know liability will be rare --and will become even rarer as the guidelines are revised.)  Kudos to AU, Stanford, Media/Professional, and Michael Donaldson for inventing the recipe and committing themselves to implement it for film-makers.  Now that we know the recipe, what are the chances that a new or overlapping set of players can implement it for scholars?