I’ve seen others point this out. I guess it’s the former editor in me, but I read that focus on “limits” as saying “We’re not telling you the limits of fair use, it can in fact go even further.” That’s not the kind of caution I would support, nor would most songwriters or photographers.

This “fair use is not a right” rhetoric allows you to paint copyright holders as having “rights” that have been violated while secondary users merely have the possibility of a “defense” that will excuse their moral transgression. The flaw in this rhetoric is that the parodist, the time-shifter, etc., are no more in the wrong than the person defending herself from a mugger, because none of them are breaking the law.

But moving beyond the false dichotomy of right and defense, the Copyright Alliance has itself claimed to define what fair use is and isn’t, in a way that goes far beyond, aka misstates, legal precedent. It is hypocritical of you to claim that AU should not “define fair use” when you claim to do so yourself. Fair use is a flexible doctrine. That’s a strength, because it allows the courts to permit unanticipated uses of copyrighted works without the copyright holder’s consent when such uses “promote the progress of science.” It’s also a weakness, because it allows copyright maximalists to discourage the exercise of fair use and the growth of fair use precedent by sowing the (often reasonable) fear that any given use will not be held a fair use and could subject the user to ridiculously large fines.

AU’s thoughtful position piece is explicitly not “legal advice.” In fact, it says “This code of best practices does not tell you the limits of fair use rights.”

Where exactly did the “Founding Fathers” propose a narrow interpretation of fair use? The “primary focus” of copyright according to the Constitution is to promote the progress of “science,” which in the 18th Century referred to all forms of learning, including the arts. The Founding Fathers also drafted the First Amendment, which, according to the Supreme Court, requires that copyright law contain meaningful limitations, including fair use. See Eldred v. Ashcroft.

Your attempt to distinguish “original creation” from “downstream mashers” is also misleading. The implication is that some in society (presumably the media conglomerates that fund you) are engaged in some Promethean act of original creation while others’ contributions to culture are “secondary” or “derivative.” There is simply no such easy distinction. Walt Disney was the consummate downstream masher. To draw that line and then imply that the “Founding Fathers and Congress” favored one side of it is a non sequitur.