Unbundling Fair Uses, 77
Fordham L. Rev.
Available at: http://scholarship.law.berkeley.edu/facpubs/1521
The copyright fair use caselaw is more coherent and more predictable than many commentators seem to believe. Fair use cases tend to fall into common patterns, or what this Article calls policy-relevant clusters. The policies underlying modern fair use law include promoting freedom of speech and of expression, the ongoing progress of authorship, learning, access to information, truth telling or truth seeking, competition, technological innovation, and the privacy and autonomy interests of users. If one analyzes putative fair uses in light of cases previously decided in the same policy cluster, it is generally possible to predict whether a use is likely to be fair or unfair. Policy-relevant clustering is not a substitute for appropriate consideration of the statutory fair use factors, but it provides another dimension to fair use analysis that complements the four-factor analysis and sharpens awareness about how the statutory factors, sometimes supplemented by other factors, should be analyzed in particular contexts. Parts I through V mainly provide a positive account of how fair use has been adjudicated in a variety of contexts and suggestions about factors that should be given greater or lesser weight in certain fair use policy clusters. Its articulation of the policy-relevant clusters into which the fair use cases typically fall should not, however, be understood as attempting to limn the outer bounds of fair use or to foreclose the development of new policy-relevant clusters. This Article concludes by offering a more normative account of fair use as an integral and essential part of U.S. copyright law that can, in fact, encompass the wide range of fair uses discussed, by recapping, the key lessons from this Article's qualitative assessment of the fair use caselaw, and by pointing to some encouraging trends in recent cases. Reprinted by permission of the publisher.