Fair Use in Context

Intellectual Property and Copyright and Trademark

Article Snapshot


Paul Goldstein


Columbia Journal of Law & The Arts, Vol. 31, pg. 433, Summer 2008


This paper looks at how rules for “fair use” of copyrighted works are changing.

Policy Relevance

In deciding whether a proposed use of copyright work for free without permission is “fair use,” reading close cases can be more helpful than theory.

Main Points

  • It is hard to describe the cases allowing “fair use” of copyrighted works, in a way that makes sense of the cases without being too general to help predict future outcomes.

  • One reasonable theory was Wendy Gordon’s idea that free use of copyrighted works makes sense when negotiating a license would not be workable, that is, when there is “market failure.” But Gordon admits that allowing fair use only when there is no substantial injury to the copyright holder was too narrow.

  • The “fair use” factors listed in the copyright law do not help much to make sense of the cases, including the Supreme Court’s decision in the Sony case that makers of VCRs were not liable for copyright infringement by users.

  • The Supreme Court might have taken into account the fact that many millions of people owned VCRs, and Congress might have failed to effectively arrange payment to copyright owners by the equipment makers.

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