Private Law Theory

ABSTRACT
This chapter excerpt from my book, The Big Steal: Ideology, Interest, and the Undoing of Intellectual Property, provides a political economic explanation for US courts’ significant expansion of the scope of the fair use exemption concurrently with the rise of digital platforms and internet adoption among US consumers. For search engines, content aggregators, and other digital intermediaries that rely on circulating content to attract users and sell advertising and other services, the fair use exemption offers a business strategy to reduce content acquisition and distribution costs. Concurrently, scholars and advocacy groups expressed views contesting the necessity of copyright protections to sustain content production in digital environments, which supported policy recommendations to promote user access through expansion of the fair use exemption. Confronted with these signals of an apparent policy consensus, complemented by users’ preferences for ‘free stuff’, courts adopted broad understandings of the fair use exemption, especially through application of the transformative use principle. Focusing on landmark copyright infringement litigations in connection with the Google Books, Google Images, and Android projects, this chapter shows how this accidental confluence of business interests, user preferences, and scholarly views led courts to transform copyright law in a manner that favors intermediaries that aggregate content over the entities and individuals that supply original content to the digital ecosystem.

Barnett, Jonathan, The Rise of Unfair Use (Chapter Excerpt from Jonathan M Barnett, The Big Steal: Ideology, Interest, and the Undoing of Intellectual Property, Oxford University Press 2024); USC CLASS Research Paper No 2531.