Fair Use, the Internet Age, and Rulifying the Blogosphere

Abstract

The fair use analysis in copyright law is, at present, a confusing and sometimes contradictory entanglement of four factors whose outcome is not guaranteed until it comes before a court ex post. Despite the four factors being listed as clearly delineated points in § 107, in reality, these factors have substantial overlap and courts have provided contradictory rulings even in the same circuit. This article builds on the earlier suggestions of Niva Elkin-Koren and Orit Fischman-Afori in suggesting rulification of fair use in specific creative contexts to better distinguish the legal standards for fair use for the population at large. In particular, this article grounds this discussion in a case example of individually published online content, broadly termed blogs for the purposes of this paper, finding, by reviewing all fair use decisions on posted online content, that these decisions are primarily decided by evaluating three factors: trans-formative use, commercial purpose, and market effect. The example of rulfiying fair use for blogs should just be the beginning, an example of how the delineation of more concrete fair use rules for different creative mediums would benefit the U.S. population at large.