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15 Lewis & Clark L. Rev. 715 (2011)
Making Sense of Fair Use

handle is hein.journals/lewclr15 and id is 731 raw text is: MAKING SENSE OF FAIR USE by Neil Weinstock Netanel Many criticize fair use doctrine as hopelessly unpredictable and indeterminate. Yet in several recent empirical studies, leading scholars have found some order in fair use case law where others have seen only chaos. Building upon these studies and new empirical research, this Article examines fair use case law through the lens of the doctrine's chronological development and concludes that in fundamental ways fair use is a different doctrine today than it was ten or twenty years ago. Specifically, the Article traces the rise to prominence of the transformative use paradigm, as adopted by the Supreme Court in Campbell v. Acuff- Rose, over the market-centered paradigm of Harper & Row v. The Nation and its progeny. The Article presents data showing that since 2005 the transformative use paradigm has come overwhelmingly to dominate fair use doctrine, bringing to fruition a shift towards the transformative use doctrine that began a decade earlier. The Article also finds a dramatic increase in defendant win rates on fair use that correlates with the courts' embrace of the transformative use doctrine. In light of these developments, adding an historical dimension to a study of fair use case law helps to make sense of what might otherwise appear to be a disconnected series of ad hoc, case-by-case judgments and explains why current rulings might seem to contradict those regarding like cases issued when the market-centered paradigm still reigned supreme. I. INTRODUCTION ................................. 716 II. FAIR USE BASICS ................................. 719 III. PREVIOUS EMPIRICAL STUDIES ............... ...... 720 A. Beebe. ............................................ 720 B. Samuelson........................................ 725 C. Sag. ................................... .......... 728 Pete Kameron Endowed Chair in Law, UCLA School of Law. I am grateful to Lewis & Clark Law School for hosting me as its 2010 Distinguished IP Visitor and inviting me to present the public lecture that formed the basis for this Article. For invaluable comments, I thank Niva Elkin-Koren, Eldar Haber, David Nimmer, Matthew Sag, Pamela Samuelson, and participants in colloquia at Michigan Law School and Haifa University Faculty of Law, at which I presented earlier versions. I owe a special debt of gratitude to Barton Beebe for providing me with his database of fair use opinions and to Joseph W. Doherty, Director of the Empirical Research Group at UCLA School of Law, and Michael Weinstock for generously assisting me with statistical analysis. Last but not least, I thank my excellent research assistants, Lynn McClelland and Luma Khatib. 715

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