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After listening to Marburger on this week's On The Media (http://www.onthemedia.org/transcripts/2009/07/24/05) I can only say he doesn't understand that he doesn't understand.

For better or worse I think the reality of suggestions/white papers/post such as those by Judge Richard Posner the Marburgers does nothing more than proclaim their irrelevancy and ignorance. To use a historical analogy they are simply King Canute (http://en.wikipedia.org/wiki/Cnut_the_Great), not only commanding the tide not to wet his feet, but marshalling their troops to enforce their command. The number of troops and their prowess is meaningless in the face of the tide.

The outcome of the changes is completely independent of the efforts of such people. Changing the laws will actually make the final outcome more painful for a greater number of traditional organisations as they will feel a false sense of security that will ultimately prove fatal.

This drama is being painfully played out in many industries (music is the most obvious example to me)

I agree that content providers have a hysterical approach to fair use, and have consciously or done profoundly misinformed the public. Some guidance on fair use can be found at our website, centerforsocialmedia.org/fairuse. Excellent Codes of Best Practices are there, which show how fair use is reliably being employed by a wide variety of creator and user communities. These codes are vetted by a bank of lawyers, and have the stamp of approval of perhaps the most conservative of all industry actors: the insurers (for errors and omissions in film).

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