The public's right to fair use: amending Section 107 to avoid the "fared use" fallacy

Abstract

Under provocative titles like “Fared Use” and “The End of Friction,” commentators argue about whether or not the copyright doctrine of fair use should exist in a world of instantaneous transactions. As collecting societies such as the Copyright Clearance Center have become more powerful, and technologies like cellular phones and the internet have made it possible to purchase digital copies by dialing a number or clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. The Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present or possible. The presence of “traditional, reasonable, or likely to be developed markets,” they say, counts heavily against fair use. The only exception, a later decision suggests, might lie in the ill-defined category of transformative uses. For exact copies, it seems, the presence of a licensing mechanism might be fatal to fair use. This is a dangerous direction for copyright law.