Campbell at 21/Sony at 31
34 Pages Posted: 18 Mar 2015 Last revised: 8 Jul 2015
Date Written: March 17, 2015
When copyright lawyers gather to discuss fair use, the most common refrain is its alarming expansion. Their distress about fair use’s enlarged footprint seems completely untethered from any appreciation of the remarkable increase in exclusive copyright rights. In the nearly 40 years since Congress enacted the 1976 copyright act, the rights of copyright owners have expanded markedly. Copyright owners’ demands for further expansion continue unabated. Meanwhile, they raise strident objections to proposals to add new privileges and exceptions to the statute to shelter non-infringing uses that might be implicated by their expanded rights. Copyright owners have used the resulting uncertainty over the scope of liability for new uses to litigate some new businesses into bankruptcy before their legality could be determined. These developments push fair use to shelter new uses and users. When lawyers for copyright owners complain that fair use has stretched beyond their expectations, they fail to acknowledge their own responsibility for its growth.
This essay, written for the 2015 Washington Law Review Symposium on Campbell at 20, takes up these questions with particular attention to the 31 year old decision in Sony v. Universal Studios, and Congress’s assumptions about individual and contributory liability for personal copying before and after the Sony case.
Keywords: copyright, fair use, personal copying, Sony
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