Abstract

http://ssrn.com/abstract=1659855
 


 



The Forgotten Right of Fair Use


Ned Snow


Independent

August 16, 2010

Case Western Reserve Law Review, Vol. 62, No. 1, 2011

Abstract:     
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 for infringement 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.

Number of Pages in PDF File: 40

Keywords: copyright, fair use, free speech

Accepted Paper Series





Download This Paper

Date posted: August 18, 2010 ; Last revised: April 6, 2012

Suggested Citation

Snow, Ned, The Forgotten Right of Fair Use (August 16, 2010). Case Western Reserve Law Review, Vol. 62, No. 1, 2011. Available at SSRN: http://ssrn.com/abstract=1659855 or http://dx.doi.org/10.2139/ssrn.1659855

Contact Information

Ned Snow (Contact Author)
Independent
No Address Available
United States
Feedback to SSRN


Paper statistics
Abstract Views: 591
Downloads: 117
Download Rank: 144,332
Paper comments
No comments have been made on this paper

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo5 in 0.297 seconds