The Sub Rosa Rules of Copyright Fair Use
59 Pages Posted: 8 May 2020
Date Written: May 4, 2020
This Article analyzes copyright law’s fair use doctrine using basic ideas from the “rules” and “standards” literature. The Article proposes that instead of understanding of 17 U.S.C. §107 as one copyright exception, it is better to see §107 as a legal standard which serves as a mechanism to establish distinct, judge-made rule-like exceptions. The §107 jurisprudence does this in the same way that 15 U.S.C. § 1 of the Sherman Act allows courts to generate per se illegal rules for some economic conduct while itself remaining a legal standard to judge other business activities. The principle difference is that fair use jurisprudence abhors “bright-line rules,” so the rules must remain sub rosa. The fact that what we call “fair use” is both the overall §107 balancing test and these specific, de facto rules explains Jekyll/Hyde descriptions of fair use as both “vague” and “predictable,” as “stable” yet “so flexible as virtually to defy definition.” After exploring some de facto rule-like exceptions that have spun off the fair use legal standard in §107, the Article places this observation about fair use in the context of Karl Llewelyn’s Theory of Rules.
The Article then considers two debated topics among commentators: whether fair use determinations can ever be automated and what impact the transformative use doctrine has on fair use. Despite some doctrinal instability, transformative use analysis has already spun off one stable, rule-like exception from §107: comprehensive reproduction of expressive works to prepare searchable databases. The Article concludes that we can expect that the fair use balancing test in American copyright law will continue to generate specific, rule-like exceptions in response to new social and economic developments.
Keywords: copyright, fair use, rules v standards, rules, standards, Llewelyn, algorithms, transformative use
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