The forgotten right of fair use.

Author:Snow, Ned


Free speech was once an integral part of copyright law; today it is all but forgotten. At common law, principles of free speech protected those who expressed themselves by using another's expression. Free speech determined whether speakers had infringed a copyright. To prevail on a copyright claim, then, a copyright holder would need to prove that the speaker's use fell outside the scope of permissible speech--or in other words, that the use was not fair. Where uncertainty prevented that proof fair use would protect speakers from the suppression of copyright. Today, however, all this has changed. Copyright has deeply buried any remnants of free speech, redefining the doctrine of fair use as a pretext for piracy that aims to excuse infringing conduct. Copyright enforcement has become the norm and fair use the exception, resulting in a presumption against fair-use speech. Uncertainty no longer protects speakers; it damns them. The change--from fair use as a strong right of speech to fair use as a weak excuse--occurred subtly, unintentionally, and without reason. It was a mistake. Quickly becoming widespread, the mistake swiftly eroded speech protections in copyright. If left unchecked, the mistake will become immutable. This Article traces the history of fair use from its birth as a strong right of speech to its deterioration into a weak excuse for infringement.

INTRODUCTION I. THE ROLE OF FAIR USE A. A Fundamental Conflict B. A Dispositive Framework II. THE HISTORY OF FAIR USE: FROM RIGHT TO EXCUSE A. Judicial Treatment of Fair Use as a Right 1. English Case Law 2. Federal Case Law a) Fair Use as a Test for Infringement b) Fair Use as a Right c) Fair Use as a Presumption B. Judicial Departure from Precedent 1. A Mistake by Two Commentators 2. Judicial Adoption of the Mistake C. Congressional Intent as Speech Right 1. Legislative History Prior to the Copyright Act 2. Language of the Copyright Act 3. Organization of the Copyright Act 4. 1976 Legislative History D. Judicial Departure from Congressional Intent III. THE PRESENT TREATMENT A. Judicial Reasoning Under the DeWolf-Ball Conception B. Failure to Recognize Speech C. Reliance on the Burden of Proof CONCLUSION INTRODUCTION

For over a century, property rights of copyright holders were subject to speech rights of those who expressed themselves by repeating another's expression. (1) Through the doctrine of fair use, free speech offered presumptive protection to users of copyrighted material: copyright holders had to prove that a use was unfair to prevail on a claim of infringement. (2) Today, speech rights of fair users are subject to property rights of copyright holders. Fair use stands as an exception to a copyright norm, available only in extraordinary circumstances: (3) copyright holders prevail unless fair users can prove that their use merits protection. (4) Thus, free speech once defined the scope of copyright; today, copyright defines the scope of free speech.

This change in fair use, from a right of speech to an excuse for infringement, occurred subtly in the path of law. There was no clear and distinct alteration in course; there was no deliberate or intentional decision made. (5) It was unintentional and accidental. Courts simply made a mistake. The speech-protective features of fair use are today all but forgotten as courts now view fair use as an exception to the norm of copyright monopoly. Simply put, where there is doubt as to whether a use is fair--which is always--courts refuse to apply fair use, for they view it as a doctrine that is exceptional, and its exceptionality suggests that circumstances requiring its application must be clear and apparent before it can be invoked. (6) As a result, copyright's interest in suppressing expression has ascended over free speech's interest in building upon expression. Monopolies are prevailing. Speech is suffering.

This Article traces the history of fair use from a speech right that defined the contours of copyright to an exception that excuses infringement. Part I outlines the doctrine of fair use and its role in alleviating the inherent tension between protecting free speech and creating incentives for original expression. Part I also explains the role of the conceptual and procedural framework for applying fair use. Part II recites the relevant history of fair use. It analyzes judicial treatment of fair use from its inception to its present application, pointing out the shift from viewing fair use as a right that defined copyright to an affirmative defense that excused infringement. Part II further recounts indications of congressional intent to make fair use a right; it then points out the Court's faulty interpretation of those indications. Part III examines courts' present treatment of fair use, analyzing specific cases that illustrate the substantive effect of changing the framework of fair use from a right to an excuse.


    1. A Fundamental Conflict

      At war are free speech and copyright. The principle of free speech represents a limitation on the government's ability to restrain expression. (7) Copyright represents a government restraint on the public's ability to communicate copied expression: it restrains those who speak expression already articulated by another. (8) Copyright condones that restraint; free speech condemns it.

      From the inception of fair use, the purpose of the fair-use doctrine has been to alleviate the tension between copyright and free speech. (9) Simply put, its ostensible purpose is to reconcile the respective speech-suppressive and speech-protective positions. It is intended to exempt from copyright that which merits protection as speech. (10) If subsequent expression incorporates another's prior expression in order to communicate an original idea, that subsequent expression constitutes a fair use of the prior expression, and so the law should protect it as speech. (11) Fair use, then, is intended to calm the strife between copyright and free speech by delineating core speech that copyright cannot suppress. (12)

      Over time, courts developed general principles to determine whether a use of copyrighted expression was permissibly fair. (13) Today, the Copyright Act states some of those principles in a list of four factors that courts must consider in determining fairness. (14) The first factor examines whether the use is transformative and whether the use serves a commercial purpose; the second factor examines whether the nature of the copyrighted work merits strong protection; the third factor examines whether the use constitutes a significant amount or a substantial portion of the copyrighted work; and the fourth factor examines whether the use significantly affects the value of, or a potential market for, the copyrighted work. (15)

      The application of these factors to circumstances often raises difficulty for decision makers. (16) Consider the first-factor inquiry into whether a use transforms a copyrighted work. Does a trivia game about the popular television show, Seinfeld, transform the expression in that show? (17) Does a painting of a copyrighted photograph transform that photograph--e.g., Shepard Fairey's painting of the Associated Press photograph of President Obama? (18) Transformation, which is a question of degree and which often weighs heavily in a court's fair-use analysis, may be too far buried in grey for a court to discern its presence with absolute clarity. Determining fairness requires a fact-finder to draw upon subjective experience and opinion, which makes predicting the outcome exceedingly difficult. (19)

      Of course not every assertion of fair use raises uncertainty. Some infringers may assert the argument where it is not even arguable. (20) In such cases of blatant infringement, courts can easily dismiss bad-faith arguments of fair use. (21) But for those cases where fair use is at least arguable, courts and scholars alike recognize the inherent uncertainty surrounding the question. (22)

      The reason for the uncertainty that surrounds questions of fair use is that the doctrine is intended to contemplate all circumstances that could possibly justify protecting a use from copyright's suppression. (23) Fair use must be as flexible as circumstances are variant that would occasion its application. It is for this reason that fair use requires a case-by-case analysis. (24) Flexibility yields uncertainty in meaning, including the terms intended to offer clarity, e.g., transformation, substantial, commercial, and potential market. Uncertainty, then, is unavoidable--indeed, even intentional--in the doctrine of fair use, for uncertainty allows flexibility and a breadth of application.

    2. A Dispositive Framework

      Amidst uncertainty, presumption becomes dispositive. In the absence of clarity on a substantive question, a decision maker will favor the litigant whom the law presumes to be the winner. (25) So the uncertainty that accompanies fair-use questions increases the importance of the presumption that governs. (26) The presumption turns on the substantive view of fair use: fair use may be viewed as either a speech fight that is superior to the copyright right or as an exception that excuses infringing conduct. (27) The former conception implies a presumption favoring fairness: as a right of speech, fair use would require that a copyright holder prove that the speech is not protected, i.e., that fair use should not apply. By contrast, the latter conception implies a presumption favoring copyright: as an excuse for infringement, fair use would be an exception that justifies infringing conduct, i.e., the proponent must prove that it does apply. The substantive view of fair use--as a right of speech or as an exceptional excuse--determines the presumption. And that presumption provides a significant substantive advantage to whichever party it favors.

      For over a century, the framework for viewing the role of fair use remained constant...

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