Austin,

Great idea on the article and you delved into the doctrine well. However, fair use is much more nuanced and complicated than what you have portrayed here. Several comments/suggestions: 1) Check the law on the fourth factor, esp. after the Supreme Court's Campbell v. Acuff-Rose decision. I remember the Second Circuit saying that the fourth factor is no longer as important as you are portraying it as. 2) I agree - we need to limit the scope of derivative works rights, but that's a 106 problem separate from fair use. What about limiting derivative rights based on categories of works, e.g. musical works as opposed to pictorial or literary works? Also, explore the possibility of adopting something from the blocking patents system in patent law. 3) The burden shift sounds good in theory but difficult procedurally and unlikely to be accepted. The DMCA takedown provisions has something similar but I don't see how placing the burden on plaintiffs, which I agree would limit copyright lawsuits, would work or not have the effect of unleashing too much unauthorized copying. Finally, the First Amendment protections are built into the copyright clause and you won't get much sympathy from the Supreme Court on separate First Amendment considerations.

What we do need is better guidance on how to apply the fair use test. Having four factors, each with its intricate nuances, and no sense of how exactly to balance them and approach it analytically, is the problem with fair use. It has troubled individuals and businesses, and courts when they need to decide them. Some guidance from the Supreme Court or even Congress would be helpful. Ultimately, the best solution I think would be for Congress to do a Copyright overhaul like they did with patents, but more comprehensively and in line with what copyright and fair use means in the 21st century.

-- ThomasHou - 05 Dec 2011

Austin,

Great idea on the article and you delved into the doctrine well. However, fair use is much more nuanced and complicated than what you have portrayed here. Several comments/suggestions: 1) Check the law on the fourth factor, esp. after the Supreme Court's Campbell v. Acuff-Rose decision. I remember the Second Circuit saying that the fourth factor is no longer as important as you are portraying it as. 2) I agree - we need to limit the scope of derivative works rights, but that's a 106 problem separate from fair use. What about limiting derivative rights based on categories of works, e.g. musical works as opposed to pictorial or literary works? Also, explore the possibility of adopting something from the blocking patents system in patent law. 3) The burden shift sounds good in theory but difficult procedurally and unlikely to be accepted. The DMCA takedown provisions has something similar but I don't see how placing the burden on plaintiffs, which I agree would limit copyright lawsuits, would work or not have the effect of unleashing too much unauthorized copying. Finally, the First Amendment protections are built into the copyright clause and you won't get much sympathy from the Supreme Court on separate First Amendment considerations.

What we do need is better guidance on how to apply the fair use test. Having four factors, each with its intricate nuances, and no sense of how exactly to balance them and approach it analytically, is the problem with fair use. It has troubled individuals and businesses, and courts when they need to decide them. Some guidance from the Supreme Court or even Congress would be helpful. Ultimately, the best solution I think would be for Congress to do a Copyright overhaul like they did with patents, but more comprehensively and in line with what copyright and fair use means in the 21st century.

-- ThomasHou - 05 Dec 2011