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The Misuse of Licensing Evidence in Fair Use Analysis: New Technologies, New Markets, and the Courts |
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Matthew Africa |
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| When confronted with new uses of copyrighted works, courts assessing fair use claims face a difficult problem in examining the fourth fair use factor, the potential effect of the infringing use upon the market for the copyrighted work. A determination that the copyright holder's interest has been harmed implicitly requires a finding that there is a market for the use, and that the holder has a right to prevent unpermitted uses. Often, the very existence of such a market is at issue. In this context, a court's denial of fair use may in effect award a new market to the copyright holder to ex-ploit. Although the determination of whether a new market should belong to a copyright holder is integral to preserving copyright's constitutionally mandated balance between authors and the public, neither the fair use stat-ute nor Supreme Court precedent provides clear standards. As a result, courts have had to strike out on their own. This Comment argues that courts, overly influenced by the market failure theory of fair use and mis-led by licensing evidence, have failed to distinguish between uses that should be paid for and uses that merely can be paid for. Finally, this Com-ment suggests several methods of reforming fair use analysis of the market effect factor and concludes that, ultimately, Congress may be better suited to preserving copyright's constitutional balance than are the courts. | |
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© 2000 by California Law Review, Inc. |
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