Fair Use Harbors
University of Pennsylvania Law School; Bar Ilan University - Faculty of Law
Kevin A. Goldman
University of Pennsylvania Law School
Virginia Law Review, Vol. 93, p. 1483, 2007
U of Penn Law School, Public Law Research Paper No. 07-39
Bar Ilan Univ. Pub Law Working Paper No. 07-07
The doctrine of fair use was originally intended to facilitate those socially optimal uses of copyrighted material that would otherwise constitute infringement. Yet the application of the law has become so unpredictable that would-be fair-users can rarely rely on the doctrine with any significant level of confidence. Moreover, the doctrine provides no defense for those seeking to make fair uses of material protected by anti-circumvention measures. As a result, artists working in media both new and old are unable to derive from copyrighted works the full value to which the public is entitled. In this Essay, we propose a solution to the uncertainty and unpredictability that plague the doctrine: nonexclusive safe harbors that define minimum levels of copying as per se fair uses. These bright-line rules would provide the clarity needed to facilitate countless productive uses that are currently being chilled. Furthermore, by providing an ex ante test for identifying uses as fair, these safe harbors provide a framework for salvaging fair use in the digital age.
Number of Pages in PDF File: 50
Keywords: copyright, anti-circumvention measures, bright line rules, fair use, DMCA, Digital Millenium Copyright Act, rules versus vs. standards, safe harborworking papers series
Date posted: September 19, 2007 ; Last revised: July 30, 2009
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