Fair use would seem to be a great option for American educators. The ability to choose between free use of an ever increasing set of open materials and limited use of the vast sea of closed materials might seem enviable. But there are pitfalls involved with fair use that dramatically limit its utility.
Most importantly, even though education is specifically listed as a core reason for why there is a fair use doctrine at all, and thus the first consideration is strongly on the side of educators, the other considerations are also weighed in making the determination. This leads to a situation in which four considerations, some of which are more ambiguous than others, are all weighed on a case by case basis, making it nearly impossible to say with certainty whether or not any given use of copyrighted material is fair use. (In fairness, open licensing also has its share of ambiguity, such as the precise delineation of when use of licensed work is non-commercial and when it is not.)
This uncertainty dovetails what is perhaps the most compelling reason that educators are wary of fair use - that fair use is not a protection from copyright violation lawsuits, but merely an affirmative defense for those who have been subjected to them. Litigation has long since supplanted baseball as America's national pastime, and there is little to prevent large corporate copyright holders from filing suit against those making fair use of their materials in the hope that an unmeritorious lawsuit is sufficient to dissuade the fair user's activities.
The result of this situation is that educators often don't make fair use of copyrighted materials, choosing instead the easier, safer route of rights clearance when wishing to use such works. Not only is this a waste of educators' time and money, however, but what is considered fair use by courts is determined in part by community standards, and as the community continues to select rights clearance whenever there's a gray area, those gray areas become territory that is harder and harder for fair use to recover.
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