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CHAPTER THIRTEEN
Limitations on Exclusive Rights: Fair Use
§ 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair
use of a copyrighted work, including such use by reproduction in
copies or phonorecords or by any other means specified by that
section, for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship,
or research, is not an infringement of copyright. In determining
whether the use made of a work in any particular case is a fair use
the factors to be considered shall include—
(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit educational
purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation
to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value
of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of
fair use if such finding is made upon consideration of all the above
factors.
Section 107 of the Copyright Act contains its most famous limitation—fair use—
though not its most important limitation, which is clearly the idea-expression distinction.
The idea/expression and fact/expression dichotomy says that while you cannot have the
expression, the facts and ideas in any work are yours. But what if you need the
expression? Or if you should have the expression in order to promote the progress, the
foundational goal of copyright? That is where fair use comes in. We have said many
times—in SFAA v. USOC, for example—that the most common defense of intellectual
property against First Amendment claims is “you don’t need the protected material!
Paraphrase!” Fair use is for when the paraphrase will not work. (To use Justice Brennan’s
non intellectual property example, a T shirt saying ‘I strongly resent the draft’ would not
be same.) And fair use also covers those cases where the right to prevent copying should
have no role in the first place.
But fair use is something else as well—it has become the duct tape of copyright,
the thing courts turn to when something systemic needs to be fixed right now.
Congress (and the happenstance of technological development) continue to drop
new technologies and forms of media into the bed marked “copyright,” with scant
guidance to judges about how they are to deal with the resulting chaos. We are not
referring only to software. There is the reality of a global web that is spidered, copied,
every day by search engines, and must be if it is to be navigable. We now live constantly
with devices on which reading is also necessarily copying. We work and play with
systems in which making a compatible widget—the generic razor blade of the digital
era—requires decompiling copyrighted code. In each case, activities—reading, indexing,