God In The Machine: A New Structural Analysis of Copyright’s Fair Use Doctrine
This article is a broad reconceptualization of the role of fair use within copyright law. Fair use is commonly thought of as just one of many exceptions limiting copyright. I show that fair use has actually enabled the expansion of copyright protection, through its structural role.
The structural role of fair use has two aspects. First, copyright necessarily must balance intellectual property incentives with the protection of free speech and innovation; fair use constitutes that balancing mechanism. By establishing the outer limits of copyright, fair use in fact enables an expansive interpretation of author’s rights within those bounds. Second, because copyright works best by providing flexible principles that can accommodate technological changes, fair use also constitutes the mechanism by which Congress has given the courts a large policy making role to ensure copyright’s balance.
This article explains this structural function of fair use, then shows how this theory should and does apply. In doing so, it also identifies two broad trends emerging in the case law that have previously not been recognized or articulated, despite their significance. These are the principles of consumer autonomy and medium neutrality.
Intellectual Property Law
Date of this Version
Matthew J. Sag, "God In The Machine: A New Structural Analysis of Copyright’s Fair Use Doctrine" (March 16, 2005). bepress Legal Series. bepress Legal Series.Working Paper 526.