Fair Use Harbors

50 Pages Posted: 19 Sep 2007 Last revised: 30 Jul 2009

See all articles by Gideon Parchomovsky

Gideon Parchomovsky

Hebrew University of Jerusalem - Faculty of Law; University of Pennsylvania Carey Law School

Kevin A. Goldman



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.

Keywords: copyright, anti-circumvention measures, bright line rules, fair use, DMCA, Digital Millenium Copyright Act, rules versus vs. standards, safe harbor

Suggested Citation

Parchomovsky, Gideon and Goldman, Kevin A., Fair Use Harbors. 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, Available at SSRN: https://ssrn.com/abstract=1014436 or http://dx.doi.org/10.2139/ssrn.1014436

Gideon Parchomovsky (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-898-1603 (Phone)

Kevin A. Goldman

Independent ( email )

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