Opponents of fair use have settled on a few simple arguments--fair use is too unpredictable, it's too big (slight tension there), and it's too American. Brandon Butler, Michael Carroll, and Peter Jaszi have taken the opportunity to rebut them in comments to the Copyright Office in response to its orphan works roundtable. It's short, punchy, and worth reading in full, but here's my favorite bit, responding to criticisms of best practices statements:
No one accuses journalists of being one-sided when they establish their own views about the legality of publishing allegedly secret government information, without first consulting the government. By definition this intra-community deliberative project differs fundamentally from the process of negotiating among groups with adverse interests. At the same time, because the best practices and the rationales that undergird them are declared publicly, they serve as invitations to dialogue with effected rights holders, who have not been hesitant to declare (and act upon) their own views about fair use.