Their K is totalizing and lacks nuance. Prefer a framework that acknowledges fair use as appropriative colonialism and IP as a method of restorative justice.

Admittedly, a framework that delves deeper into actual or potential harms to the author or their creative environments may not sit well with advocates for an expansive public domain. 293 As Professor Lessig and others have argued, culture is typically conceived of as a social text, a shared referent between individuals in a society that grows in meaning and value as it is freely used. 294 The more a cultural referent is used and reused, the more it is enriched, diversified, and increased in value. 295 While in theory fair use should balance the public's interest in access to cultural referents against the incentives necessary for creators to produce and develop them, these commentators believe fair use's fact-intensive inquiry "in practice becomes the right to hire a lawyer," thus stifling creative progress. 296 Thus, these scholars advocate for a fair use test that minimizes consideration of the potential harms to authors in favor of greater public access. 297

While arguments for expanding the settler public domain may dismiss or refocus the second factor by making broad assumptions about the nature of authorship, these arguments may not fully account for the loss of creativity that may result as creators and their creative networks - particularly Indigenous ones - lose confidence that their investments in creativity will be protected.

[*1433] The proposed approach to the second fair use factor would provide greater analytical power than our current frameworks, particularly for works of Indigenous and other marginalized groups. If the normative thrust of fair use is to balance the public benefit of an appropriation against the potential harms to copyright's incentives to create, this inquiry would ably inform both sides of that equation. If the creative environment for a work were stifled, rendered inoperable, or destroyed due to unauthorized uses of the work, the author(s), their networks of support, and the public would ultimately suffer loss of future creativity, and the "nature of the copyrighted work" inquiry should weigh against fair use. However, if the creative environment for the work thrives or benefits from modes of appropriation (e.g., open source software, tweets), is structured so that the appropriation would have little impact on creativity (e.g., shopping lists, standard form contracts, perhaps even academic articles), or the work's production has little need for the kinds of controls against appropriation copyright offers (e.g., Facebook posts, online reviews), an unauthorized use might not impact the creative environment at all, and the "nature of the copyrighted work" inquiry might support fair use.

The second factor, of course, must be weighed together with the other fair use factors, which may very well counterbalance it in favor of a particularly beneficial use of a given work. 298 But this proposed analysis should provide a more useful way of inserting the "nature" of a work into the fair use calculus in a way that serves the overarching purpose of copyright law, particularly within Indigenous cultural contexts.