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2007 Utah L. Rev. 619 (2007)
The Public's Right to Fair Use: Amending Section 107 to Avoid the Fared Use Fallacy

handle is hein.journals/utahlr2007 and id is 627 raw text is: THE PUBLIC'S RIGHT TO FAIR USE: AMENDING SECTION 107 TO AvOID THE FARED USE FALLACY Wendy J. Gordon and Daniel Bahls* I. INTRODUCTION A. A Wrong Direction in Fair Use Scholarship and Jurisprudence Under provocative titles like Fared Use' and The End of Friction,2 commentators argue about whether or not the copyright doctrine of fair use3 should exist in a world of instantaneous transactions. As collecting societies such as the Copyright Clearance Center have become more powerful, and technologies like cellular phones and the internet have made it possible to purchase digital copies by dialing a number or clicking a mouse, the suggestion is sometimes made that fair * © 2007 by Wendy J. Gordon and Daniel Bahls. Wendy Gordon is a Professor of Law and Paul J. Liacos Scholar in Law at the Boston University School of Law. Daniel Bahls is a 2007 magna cum laude graduate of the Boston University School of Law and a 2004 graduate of Williams College. A preliminary version of this paper was presented at the conference Exploring the Boundaries of IP Law at IDC Radzyner School of Law, Herzliya, Israel, and we thank the participants there for their comments. The authors also thank James Corwin, Carolyn Dekker, Tamar Frankel, Paul Geller, Laura Heymann, Gavin McCormick, Brandy Karl, Gideon Parchomovsky, and especially Pam Samuelson for helpful comments. We also want to express our appreciation to Raquel Ortiz and the rest of the B.U. Law Library staff for their consistent willingness to go the extra mile. For excellent research assistance, we thank Naomi Lee Baumol, Keren Ben- Shahar, Jim Flahive, Shannon Liu Senn, and Andy Newsom. Responsibility for all errors remains, of course, with us. 'Tom W. Bell, Fair Use vs. Fared Use: The Impact of Automated Rights Management on Copyright's Fair Use Doctrine, 76 N.C. L. REv. 557 (1998). 2 Robert P. Merges, The End of Friction? Property Rights and Contract in the Newtonian World of On-line Commerce, 12 BERKELEY TECH. L.J. 115, 130 (1997); see also Glynn S. Lunney, Jr., Fair Use and Market Failure: Sony Revisited, 82 B.U. L. REV. 975 (2002). For a powerful presentation of the view that 'market failure' as a basis for fair use should not be limited to barriers between seller and buyer, see Lydia Pallas Loren, Redefining the Market Failure Approach to Fair Use in an Era of Copyright Permission Systems, 5 J. INTELL. PROP. L. 1 (1997). For an interesting treatment that has some parallels to the discussion in the instant article, see Matthew Africa, The Misuse of Licensing Evidence in Fair Use Analysis: New Technologies, New Markets, and the Courts, 88 CAL. L.REv. 1145, 1171 (2000). Other articles on the topic are cited as we raise various issues below. 3 17 U.S.C. §107 (2006) (fair use allows the unconsented use of a copyrighted work). Developed as a judicial doctrine, fair use was eventually codified, although Congress gave ample warnings in the legislative history that judges should continue to develop the precedent and that the statute was not meant to freeze the doctrine. H.R. REP. No. 94- 1476, at 66 (1976).

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