Toward Another Fair Use Standard

If there has been one constant with fair use throughout the history of the doctrine, it’s that no one can explain how to apply it in a consistent manner. That’s not to say most don’t have a rough sense of the purpose of fair use—to permit the reasonable use of copyrighted material when doing so is consistent with the goals of copyright law itself. And it’s also not to say merely that fair use is a challenging doctrine—the law is filled with challenging doctrines. What it does mean is that the doctrine lacks a sufficiently concrete standard that would aid judges to reach determinations in a roughly consistent and predictable manner. Justice Story’s 1841 decision in Folsom v. Marsh serves as the spiritual forebear of the modern doctrine—the Copyright Act’s set of factors courts must consider when determining fair use is drawn almost directly from Story’s opinion. Yet Story states from the outset the absence of any sort…

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