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Private Rights and Public Wrongs: Fair Use as a Remedy for Private Censorship

45 Pages Posted: 5 Feb 2012 Last revised: 16 Jan 2013

Stephen McIntyre


Date Written: December 10, 2012


Copyright law seeks to promote the public welfare by incentivizing the creation and publication of art, literature, and other original works of authorship. The law bestows exclusive economic rights in expression, which allow copyright holders to exploit the commercial value of their creations in the marketplace. This affords a high degree of control over when and how others use copyright-protected works. These rights, however, are not absolute. The 'fair use' doctrine has traditionally permitted unauthorized and uncompensated uses of copyrighted material for socially beneficial purposes.

Under current jurisprudence, the fair use analysis is dominated by concerns about market harm. The doctrine favors 'transformative' uses that are unlikely to reduce demand for the original work by substituting for it in the marketplace. This approach makes sense when, as in most infringement cases, a copyright holder sues to protect the commercial value of a work that has been or will soon be published. But when the plaintiff’s motive is to censor his work from the public eye altogether, without regard for its commercial value, copyright enforcement is far less compelling. In these “private censorship” cases, the market-oriented fair use analysis routinely overprotects copyrights and produces outcomes that conflict with copyright law’s constitutionally-mandated purposes.

This Article proposes a reinterpretation of the fair use doctrine in the private censorship context. Eschewing the prevailing 'market substitution' framework, this alternative analysis would give greater weight to copyright law’s public-oriented objectives. The proposed analysis would facilitate a more equitable adjudication of private rights and public interests by helping to distinguish legitimate applications of copyright law from illegitimate attempts to suppress information and expression.

Keywords: copyright, intellectual property, free speech, censorship, fair use

Suggested Citation

McIntyre, Stephen, Private Rights and Public Wrongs: Fair Use as a Remedy for Private Censorship (December 10, 2012). 48 Gonzaga Law Review 61 (2012). Available at SSRN: or

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