The concept of fair use is ambiguous causing teachers confusion and perhaps inadvertent misuse of the privilege.  For a variety of reasons including lack of understanding of intellectual property law and public domain and a general confusion about fair use, many people unintentionally break the law concerning intellectual property.  As Lawrence Lessing states in An Anthropological Introduction to YouTube, “We live in a weird time…where ordinary people live against the law…and in a democracy, we ought to be able to do better.”  Many teachers, notably veteran teachers, have not received any formal training emphasizing intellectual property law.  Teachers are not intentional criminals; copyright laws can be confusing and ambiguous.  Teachers may inadvertently breach copyright laws by using materials in their classrooms that they believe are a part of the public domain or fair use.  "I don't think most teachers willingly ignore copyright issues," says David Ensign , a law professor at the University of Louisville. "But I do think many have the impression that any use of material in education is fair use."

Copyright Law Section 107 “ contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also presents four factors to be considered in determining whether or not a particular use is fair:

Many resources designed to explain fair use cite its ambiguity.  Confusion is often created by the subjectivity of the criteria.  As explained in Stanford University’s ”Copyright and Fair Use Overview" #5; “Fair use involves subjective judgments and are often affected by factors such as a judge or jury's personal sense of right or wrong.”  Even the U.S. Copyright Office site states, “The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.”  If fair use is ambiguous to those that deal with it on a regular basis, how can teachers protect themselves?  The advice given by the U.S. Copyright Office is not to use copyrighted material if permission is possible and not obtained. To look for assistance, the site suggests consulting an attorney. 

Because of advancing technology and the ease with which copyright infringement can occur, increasingly more materials, curriculum, and resources (including websites) are being developed designed to inform about copyright laws.  In November of 2008, the Center for Social Media published the Code of Best Practices in Fair Use of Media Literacy Education which was designed to assist teachers in fair use of copyrighted materials. The Electronic Frontier Foundation (a civil liberties group) provides a curriculum online entitled aptly “Teaching Copyright” to meet the National Educational Technology Standards.  The Entertainment Software Association has created one for kindergarten through fifth grades called Join c the Team.  Both sites offer teachers information to educate themselves as well.  Adding to teachers’ burden is the fact that determining whether or not intellectual property has become a part of the public domain (i.e. belongs to the public-at-large) is not always simple in that there are several factors to consider.  To say that a piece of intellectual property is a part of public domain after seventy-five years is not accurate.  The state of the property’s copyright along with duration since inception are among factors to be considered in determining whether or not something belongs to public domain. 

Although research did not unveil any cases of individual teachers facing litigation due to intellectual property rights infringement, there have been academic institutions that have found themselves embroiled in controversy.  Most involve the conversion of text to digital forms and distribution online.  According to Tracy Mitrano, Director of Information Technology Policy at Cornell University, the university recently settled with the American Association of Publishers after they threatened to sue for copyright infringement by their e-Reserves and some course information sites.  In 2008 Georgia State University was sued by three publishers claiming that their e-reserves and digital conversion and distribution of texts by professors infringed upon their copyrights. The publishers are not seeking monetary restitution but cessation of the practices.