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Thousands of fair use cases have been decidedsince Congress listed the four factors in the 1976Copyright Act. In 1980, a court found a SaturdayNight Live parody of the jingle “I Love NewYork” in a comedy sketch called “I Love Sodom”to be fair use. 22 There was a similarly favorableruling six years later for a parody of the song“When Sonny Gets Blue,” called “When SonnySniffs Glue.” 23 But an appeals court in 1997reversed a finding of fair use where a TV stationused a poster depicting a quilt by the artist FaithRinggold as part of a set decoration, and sent thecase back for more factfinding on the first andfourth factors. 24 The artist Jeff Koons lost on hisfair use defense when he copied a commercialphotograph called “Puppies” in the course ofcreating a three-dimensional sculpture, because,the court said, his sculpture was a “satiricalcritique of our materialistic society,” ratherthan a specific parody of the “Puppies” photo. 25And although a court in 1973 approved thephotocopying of journal articles by governmentlibraries for the purpose of advancing scientificresearch, this fair use-friendly approach wasnot extended to research scientists’ copying ofarticles at a private company. 26Practices That Threaten FreeExpression and Fair UseTaking advantage of fair use has always beendifficult because of its unpredictability, the highcost of defending it in court, and the crushingliability that may result if one guesses wrong. Buttoday, there are additional factors that create evenmore serious threats to free expression and fair use.Cease and Desist LettersThe first of these is the widespread practiceamong IP owners of sending “cease and desist”letters to threaten everyone from artists andsocial critics to commercial competitors withdire punishments for copyright or trademarkinfringement. The practice is not new, but theaggressiveness and volume of cease and desistletters has increased with the coming of theInternet, where copying is more visible andreaches larger audiences than in the past. Insome cases, the recipients of cease and desistletters would qualify for the fair use defense, orFirst Amendment protection under trademarklaw. The letters, needless to say, do not mentionthese possibilities.In the mid-1990s, for example, the RepublicanNational Committee sent a cease and desistletter to a pair of artists who expressed theiropinion of the party’s “Contract With America”by reproducing its text on a limited edition setof underpants. A reply letter from a New Yorklaw firm, defending the artists’ fair use andFirst Amendment rights, ended that dispute. 27But this did not dissuade the Office of VicePresident Dick Cheney in 2002 from sending aletter to Chickenhead Productions, complainingabout a parody biography of Cheney’s wifeLynne along with photos on Chickenhead’swhitehouse.org satire site. 28 The tenor of theCheney page could be gleaned from its heading:“The Bush Administration: Courage. Passion.Faith. Petroleum. Xenophobia.” 29 In response tothe letter, the site adorned the photos of Mrs.Cheney with a red clown nose and labels reading“Censored.” The New York Civil Liberties Unionannounced that it would go to court if necessaryto defend Chickenhead. 30In these extreme examples, the recipients ofcease and desist letters were not intimidated.But as our research showed, threats of litigationcarrying potentially massive costs do cause manypeople to relinquish their rights. 31 If the IPowner sues, even a weak copyright or trademarkclaim can cost a defendant many thousands(potentially hundreds of thousands) of dollars.The pressure to settle is intense. Thus, manyrecipients compromise their rights in order toend the controversy before huge costs ensue, andoften before any lawsuit is filed.DMCA Take-Down NoticesThe Digital Millennium Copyright Act or“DMCA,” passed by Congress in 1998, is a farreachinglaw that controls the public’s ability toaccess and copy materials in digital form. Section512 of the law provides a “safe harbor” frompossible copyright liability for Internet serviceproviders (ISPs) – including search engines– that “expeditiously” remove any material ontheir servers that a copyright owner tells them in“good faith” is infringing. No legal proceedingsare needed. 324 Will Fair Use Survive?