Hoist with our own Petard

John Palfrey thinks that fair use [is] not a strong doctrine at the moment [via Scripting News]. And suggests that we get involved with people like the EFF, Fred von Lohmann, and Wendy Seltzer if we’d like to do something about it. Unfortunately, this cuts a bit too close to home for many of us. While I think that most of us would like to see fair use better defined, I also think that many of us are not interested in seeing fair use liberalized. And that may be too narrow a path to navigate.

Right now, the primary tools to protect intellectual property are patents, trade secrets, and copyright (disclaimer: everything I know about the law I learned from TV, mysteries and the web). Patents are primarily a big company tool. And trade secrets don’t help with openly distributed software. That leaves copyright as the primary IP protection for the small software developer. So any steps towards liberalizing fair use are pretty scary steps for us to take.

Which is not to say “Don’t do it.” I just think that you’re going to need to carefully spell out direction and intent before we rally around the flag for you.