The Nirvana Fallacy in Fair Use Reform

Abstract

This Article is about finding the right venue for fair use reform, a subject it approaches through a critique of recent legislative reform proposals. Fair use is possibly the most important doctrine in all of copyright. As such, it has attracted a large volume of critical commentary. Some of the commentary is in the familiar tradition of doctrinal scholarship — advising judges how best to interpret the fair use doctrine. But there is also another trend, increasingly prominent, that focuses on legislative reforms. This school of scholarship criticizes the fair use doctrine for providing too little certainty to users of copyrighted works and second-generation creators. To reduce this uncertainty it proposes a variety of solutions, such as promulgating rules to replace the governing standard or setting up special purpose administrative entities that would require congressional action. This Article criticizes proposed legislative reforms of fair use for being unrealistic. It argues that these proposals often contrast the present state of the law with a vision of the ideal state of affairs, but pay no attention to whether this nirvana vision has any chance of realization. They ignore real-world constraints, such as institutional dynamics that bear on the feasibility and desirability of their proposed reforms. Because they bear no relation to the reality of copyright legislation, the legislative solutions are destined to fail. My aim is not to dispute the desirability of the critics’ ultimate objectives but rather to show, assuming the ends are desirable, that the critics’ proposed means are either futile or counterproductive. I argue that the federal courts are more hospitable than Congress to pro-user fair use reform, and that doctrinal scholarship is more fruitful than proposing ideal-type legislation.

Keywords: Fair use, copyright, copyright reform, judicial review, public choice, institutions