ABSTRACT
In its current form, fair use doctrine provides a personal defense that applies narrowly to the specific use by the specific user. The landmark case of Google v Oracle, currently pending before the Supreme Court, illustrates why this is problematic. Even if the Court were to rule that Google’s use of Oracle’s Java API’s was fair, the ruling would not protect the numerous parties that developed Java applications for the Android operating system; it would only shelter Google and Google’s particular use. This is not an isolated problem; the per use/per user rule cuts across fair uses of copyrighted works, and it always leaves follow-on users in the cold. Authors, musicians, documentary filmmakers and media outlets who win fair use cases cannot freely market their works that incorporate fair use content since their victories do not carry over to other users. Fair use under extant law is a very limited privilege. This Article proposes a far-reaching reform not only of copyright law as applied to software, but of the fair use doctrine itself. Our proposal consists of three interlocking elements …
Bell, Abraham and Parchomovsky, Gideon, Propertizing Fair Use (February 9, 2021). Virginia Law Review, forthcoming, University of Pennsylvania, Institute for Law and Economics Research Paper No 21-07.
First posted 2021-02-11 06:40:08
Leave a Reply