Nate Anderson at Ars Technica today has posted an illuminating description of a discussion he had with Marybeth Peters, the United States Register of Copyrights.
She points out that fair use is an ambiguous concept. Her view appears to be that unless a court has expressly weighed in on the matter of a particular use, then it's not fair use.
But when I spoke with Peters about fair use, she pointed out that the Sony decision is in fact a narrow one and that fair use itself is often ambiguous unless defined by a judge. The Court's ruling in the Sony case was limited to “free, over-the-air television for time-shifting,” she tells Ars. “It is not space-shifting; it's not anything beyond that. It's not off cable, it's not off video-on-demand, and yet if you talk to most consumers, they think that anything they do in the home that comes through their television set is fair use.”
“That becomes a consumer expectation that you hear about that they want enabled,” she continues, “and I don't disagree with that; that's what the market is demanding, and that's what the market should provide, but don't call it fair use.”
Be sure to read the whole thing, including her view that the EFF is “poisoning the well” with regards to discussion of copyright reform, over at Ars.