Excuse and justification in the law of fair use: Transaction costs have always been part of the story

Abstract

In American copyright law, the doctrine of fair use has long been problematic. Every plausible litmus test that might simplify the fair use inquiry has proven inadequate, and copyright commentators have long sought an algorithm or heuristic to lend predictability and conceptual coherence to the doctrine. Twenty years ago, I published in this Journal an article entitled Fair Use as Market Failure, which suggested that the key to understanding the protean terms of fair use could best be found in the notion of market failure. That 1982 article has been often misapplied, by both courts and commentators. I am pleased to publish in the Fiftieth Anniversary issue of this Journal a clarification of my position on market failure and fair use