Finally, some interviewees described difficulty in teaching and advising faculty, staff, and students about fair use. Where interviewees were responsible for teaching classes or workshops on fair use, some said their representations of fair use left these constituencies disappointed. Some taught fair use in terms of strict quantitative guidelines, which prompted the audience to challenge the arbitrary outcomes these guidelines seemed to require. Others taught fair use as an indeterminate and even mysterious doctrine, answering questions about specific situations with probabilistic and non-committal phrases like “it’s hard to say,” and, “I think so, but you can’t be sure.” These interviewees sometimes suggested that obtaining permission is the only sure way to avoid infringing copyright. Many interviewees reported users had unrealistic expectations about the certainty of fair use determinations. However, interviewees reported that even library users with reasonable expectations often left these sessions frustrated and discouraged. Faculty and Student Scholarship Interviewees expressed concern about employing fair use in support of scholarship in three main areas: digitizing collections, managing access to collections, and operating interlibrary loan (ILL) programs. Those with the greatest uncertainty typically chose one of four strategies: • favoring public domain, obscure, and licensed materials • limiting access to library holdings • deferring or canceling projects that raise copyright concerns and • with respect to ILL, many interviewees followed an extra-legal norm known as the “rule of five.” Several interviewees described digitization initiatives that were downsized, cut short, or never seriously considered due to costs associated with seeking permission or making what seem to be tedious case- by-case determinations of fair use. Many of these librarians said they were only going forward with projects that involved works they could be sure were in the public domain, e.g., works published prior to 1923. In most of these cases, interviewees were acutely aware that they would make different choices if they could give priority to projects that would attract more scholarly interest. RLI 273 20 Challenges in Employing Fair Use in Academic and Research Libraries ( C O N T I N U E D ) DECEMBER 2010 RESEARCH LIBRARY ISSUES: A BIMONTHLY REPORT FROM ARL, CNI, AND SPARC …interviewees were acutely aware that they would make different choices if they could give priority to projects that would attract more scholarly interest.