45 Pages Posted: 27 Feb 2011 Last revised: 12 May 2012
Date Written: February 25, 2012
Fair use is often criticized as unpredictable and doctrinally incoherent - a conclusion which necessarily implies that the copyright system is fundamentally broken. This article confronts that critique by systematically assessing the predictability of fair use outcomes in litigation. Concentrating on characteristics of the contested use that would be apparent to litigants pre-trial, this study tests a number of doctrinal assumptions, claims and intuitions that have not, until now, been subject to empirical scrutiny.
This article presents new empirical evidence for the significance of transformative use in determining the outcomes of fair use cases. It also substantially undermines conceptions of the doctrine that are hostile to fair use claims by commercial entities and that would restrict limit the application of fair use as a subsidy or a redistributive tool favoring the politically and economically disadvantaged. Based on the available evidence, the fair use doctrine is more rational and consistent than is commonly assumed.
Keywords: Copyright, Fair Use, Empirical, Commercial, Creativity, Amount, Transformative Use, Laywers & Law Firms, Litigation
JEL Classification: K1, K41
Suggested Citation: Suggested Citation
Sag, Matthew, Predicting Fair Use (February 25, 2012). Ohio State Law Journal, Vol. 73:1 47-91 (2012); TRPC 2011; Loyola University Chicago School of Law Research Paper No. 2012-005. Available at SSRN: https://ssrn.com/abstract=1769130 or http://dx.doi.org/10.2139/ssrn.1769130
By Neil Netanel
By Matthew Sag
By Paul Heald