Much of what modern digital rights management (DRM) systems attempt to accomplish was actually forcefully implemented on videogame consoles beginning with the Nintendo Entertainment System (NES) and SEGA Genesis system in the early 1980s. Examining the links between modern DRM mechanisms and these early production and copy protection systems can help contextualize the future of media production and access.

Pat also mentioned that she is working with the ICA and communication scholars more generally in developing a set of Fair Use best practices for comm. scholarship. On November 11th, the SfSM will be releasing a set of best practices for Media Literacy Education.

Ultimately, Fair Use comes down to practice. One quote in particular stuck in my head, “Fair Use is like a muscle, it grows with use.” Fortunately for us as well, that in many cases judges are interested in serving the balance between copyright holders and creators. The process for going about developing these best practices are several:

1. Find out what the problem is, or if you have a problem.
2. Show the field that there is a problem.
3. Brainstorm best practices.
4. Publish and publicize the developed code of best practices.

What is impressive is that many industries, have adopted these sets of best practices, they are hungry for them, because in many cases insurers of errors and omissions will also handle fair use claims, which protects organizations. Broadcasters, cablecasters, filmmakers, and web companies have adopted these best practices already.

One of the elements that continues to concern me is two things. The first is that I wonder what the long term consequences of most copyright court cases being settled out of court will be. Because our legal system is one based on precedent, and we cannot ultimately make the argument about First Amendment rights without first being taken to court and having the case tried is problematic. The second concern I have is that there are significant efforts being made to deteriorate young people’s understanding of Fair Use. There are active endeavours by organizations like the ESA’s ©Team efforts. These misinformation tactics deteriorate Fair Use. They atrophy the base muscles which many are hoping to grow. Perhaps a set of best ethical practices for copyright holding industries ought to be developed as well.