Excuse and Justification in the Law of Fair Use: Transaction Costs Have Always Been Part of the Story

Gordon, Wendy J.

Excuse and Justification in the Law of Fair Use: Transaction Costs Have Always Been Part of the Story

Wendy J. Gordon, Excuse and Justification in the Law of Fair Use: Transaction Costs Have Always Been Part of the Story, 50 J. Copyright Soc'y U.S.A. 149 (2002-2003)

52 Pages Posted: 4 May 2020

See all articles by Wendy J. Gordon

Wendy J. Gordon

Boston University School of Law

Date Written: 2003

Abstract

Over twenty years ago, the Journal of the Copyright Society of the U.S.A. reprinted my article, "Fair Use as Market Failure" (82 Columbia Law Review 1600 (1982), available at: https://ssrn.com/abstract=3577724. That 1982 piece suggested that an underlying pattern governs the protean forms of "fair use", and I employed the notion of market failure to reveal and explain how the pattern functioned. Since then, some misunderstandings of my argument have arisen.

I am pleased to publish in this, the Fiftieth Anniversary issue of the Journal of the Copyright Society, a clarification – and partial amendment – of my position. As for clarification, I want to emphasize that markets do not "fail" solely when transaction costs are so high that a potential seller and buyer fail to meet. As for amendment, I want to amend my treatment of how substantial injury affects fair use.

Please see the complete abstract in the article.

Keywords: copyright, fair use, justification, excuse, free speech, intellectual property, commodification, Spheres of Justice, welfare economics

Suggested Citation: Suggested Citation

Gordon, Wendy J., Excuse and Justification in the Law of Fair Use: Transaction Costs Have Always Been Part of the Story (2003). Wendy J. Gordon, Excuse and Justification in the Law of Fair Use: Transaction Costs Have Always Been Part of the Story, 50 J. Copyright Soc'y U.S.A. 149 (2002-2003) , Available at SSRN: https://ssrn.com/abstract=3581790