Fair Use Harbors

Essay — Volume 93, Issue 6

93 Va. L. Rev. 1483
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The doctrine of fair use was originally intended to facilitate those socially optimal uses of copyrighted material that would otherwise constitute infringement. Yet the application of the law has become so unpredictable that would-be fair-users can rarely rely on the doctrine with any significant level of confidence. Moreover, the doctrine provides no defense for those seeking to make fair uses of material protected by anti-circumvention measures. As a result, artists working in media both new and old are unable to derive from copyrighted works the full value to which the public is entitled. In this Essay, we propose a solution to the uncertainty and unpredictability that plague the doctrine: non-exclusive safe harbors that define minimum levels of copying as per se fair uses. These bright-line rules would provide the clarity needed to facilitate countless productive uses that are currently being chilled. Furthermore, by providing an ex ante test for identifying uses as fair, these safe harbors provide a framework for salvaging fair use in the digital age.

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  Volume 93 / Issue 6  

The (Hidden) Risk of Opportunistic Precautions

By Ehud Guttel
93 Va. L. Rev. 1389

Originalism, Popular Sovereignty, and Reverse Stare Decisis

By Kurt Lash
93 Va. L. Rev. 1437

Fair Use Harbors

By Gideon Parchomovsky & Kevin Goldman
93 Va. L. Rev. 1483

Putting Pretext in Context: Employment Discrimination, the Same-Actor Inference, and the Proper Roles of Judges and Juries

By Ross Goldman
93 Va. L. Rev. 1533