When it comes to copyright issues, corporations and their legal teams are fast redefining doctrines of fair use and safe harbor provisions way ahead of legislators and the courts, an Always On Media panel discussed today. Because technology has moved much more quickly than the law, lawyers can’t offer much guidance to clients concerned about copyright defenses than to say, “It depends on what judge we get.” The lack of fast and hard rules has led legal advisors and companies to make it up as they go along, especially in the area of fair use, which allows the use of copyrighted materials under free speech protections. “Essentially, if you can show that use of certain material is in the public interest, that’s a basis for fair use protection,” said Gabby Darbyshire, director of business development for Gawker Media. Of course, use of someone else’s content is often murky, especially when larger amounts of money are involved. “For example, when it was some anonymous person blogging from their living room in the middle of the night, no one cares if they use a photo from the New York Times. But what happens when the blog is prominent, a money-maker and it uses a thumbnail photo from another publication? And what if that photo is itself the subject of the story appearing on the blog? It deciding if fair use applies depends on where you’re sitting.” Bias, as Stuart Meyer, an intellectual property attorney with Fenwick & West, depends on where the balance of benefits lie. That’s why Microsoft’s Vista contains so many functions that prompt users to sign an agreement for uses that are not found in any legal precedent. “You can contract away just about anything,” noted Bill Patry, senior copyright counsel for Google. “The courts can’t move fast enough to keep up with the technological changes. But companies realize they must. That’s why Micosoft’s Vista has so many agreements that users must sign regarding DRM and other self-governing measures for content.”