Fair Use Continued to Bear the Weight of Protecting Speech and Innovation: 2018 in Review

Fair use provides breathing space in copyright law, making sure that control of the right to copy and distribute doesn’t become control of the right to create and innovate. New technologies and services depend on the creation of multiple copies as a matter of course. At the same time, copyright terms cover works many decades old and copyrighted software appears in more and more devices. Taken together, these developments mean the potential reach of copyright may extend ever further. Fair use makes sure that the rights of the public expand at the same time. Unfortunately, the courts did not always let fair use play that role in 2018. On the plus side, the long-running litigation over the online publication of building codes and other standards that governments have adopted as binding law offered a prime example of fair use’s importance. As part of its mission of creating a comprehensive, fully accessible database of the law, Public Resource.org posts those binding…

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