The plan mitigates bias by identifying ontological harms rather than subjective inferences.

Even if determinations of fair use are left to federal judges, courts can take steps to mitigate potential bias. In applying the second fair use factor analysis, courts should focus on evidence of a work's actual ontology and harm to the work's creative environment rather than basing their decisions on the fact finder's subjective inferences about the work's predisposition to being appropriated. 302 To do this, stakeholders in a given work could be called on to testify as to the mode of creation and value of a work within its creative environment and the effect unauthorized appropriation has or would have on future creative output. Where the original creators are no longer participating in that creative environment, those who carry such creativity forward can be called on to testify. Evaluating some creative contexts will be more complex, including those where a variety of actors are implicated in a work's creation (such as an environment like powwow, where culture is shared across communities) or where a creative environment is ontologically challenging for the fact finder (such as in the realm of Indigenous ceremonial creativity). In these situations, a tribal leader or other community member knowledgeable about the cultural context or a social scientist with both knowledge and binding relationships to the community might be among those to provide expert testimony regarding the effects of unauthorized appropriation on the particular creative environment. Ultimately, courts should give deference to the views of Indigenous communities when assessing and weighing the "nature" of their copyrightable works against the other fair use factors.