Reconstructing the Fair Use Doctrine

William W. Fisher III

Harvard Law Review, Volume 101 (June 1988), pp. 1661-1795

Copyright © 1988 The Harvard Law Review Association.
 
 

Part III: What is to be Done?

Assuming the federal courts will continue for the forseeable future to be responsible for the differentiation of fair from unfair uses of copyrighted materials, how might they do it better? ¹⁷⁹ Two answers to that question are considered and compared in the following pages. The premise of the first approach is that the objective of copyright law in general and the fair use doctrine in particular should be the efficient allocation of resources. Using analytical tools developed in recent years by economists and economically oriented legal scholars, Part IV tries to determine what single-minded pursuit of that objective [*1696]  would entail. The propositions that underlie the second approach are that copyright law has a significant effect on the shape of our culture and that a vision of the sort of culture we would like is a prerequisite to wise administration of the law. Proceeding on those suppositions, Part V adumbrates a conception of the good life and an associated conception of the good society and then considers how the fair use doctrine might be modified to move us some distance in the direction of those ideals.

Most readers will be reluctant to pursue one or another of these routes, and the bases of their reservations deserve some attention at the outset. One group of readers will find the plan to analyze the fair use doctrine from an economic standpoint unpromising. ¹⁸⁰ Of the various arguments that might undergird that sentiment, three are fundamental. First, insofar as such an inquiry must take as given the existing distribution of wealth and entitlements (other than those whose content the analysis aims to prescribe), it is indefensibly conservative. ¹⁸¹ Second, use of economic analysis is pernicious because it reinforces our regrettable tendency to view and treat all objects, relationships and conditions as commodities, presumptively subject to exchange. ¹⁸² Third, it is doubtful that maximization of wealth (even in the expansive sense in which that term is used by conscientious economists) is either desirable in itself or will facilitate achievement of a better society. ¹⁸³

Each of these arguments is powerful, but two considerations warrant suppressing at least temporarily the doubts they produce. First, many judges are likely to be attracted to an economic approach -- not only because of the current general popularity of the method, but also because intellectual property law has long been considered a field especially amenable to instrumental modes of analysis. ¹⁸⁴ Relying in part on the courts' orientation, several commentators have also argued that interpretation and assessment of the Copyright Act should be guided primarily or exclusively by economic considerations. ¹⁸⁵ Under [*1697]  these circumstances, it would be unwise to eschew the approach altogether. Second, as will be seen, economic analysis proves capable of providing insights into the fair use doctrine that all but the staunchest critics of the methodology would find helpful. In particular, it yields various practicable proposals for simultaneously increasing the production of intellectual products we value and facilitating their dissemination, and it generates an understanding of the nature and function of copyright law that can be put to good use by an analyst with a richer sense than the economists of what values the law ought to serve.

A different group of readers will react with alarm or unease to the proposal that the fair use doctrine be rebuilt with an eye to advancing a utopian vision. Moral skeptics will, of course, balk at the effort to develop a conception of the good life and the good society. Nonskeptical liberals, who believe in the existence of "objective" or "transpersonal" criteria of the good life but who contend that responsibility for virtue is inescapably individual, ¹⁸⁶ are likely to regard the proposed inquiry as, at best, self-defeating and, at worst, a prescription for elitist tyranny. Liberals whose outlook is grounded in the principle that every government has an obligation to treat its citizens with equal concern and respect ¹⁸⁷ will be unsympathetic to an approach that promises to denigrate certain life-styles and celebrate others. Even some readers not in principle opposed to the enterprise will be pessimistic about the progress that can be made in a single essay -- especially in view of the underdeveloped state of the literature upon which the argument would have to draw ¹⁸⁸ and the likelihood that the intuitions and yearnings to which the argument must appeal are partly the products of the very culture that it proposes to criticize and transcend.

Once again, although some of these objections should give us pause, a combination of three concerns warrant making at least a foray along the utopian path. First, the economic approach, helpful [*1698]  as it is, cannot answer some questions ¹⁸⁹ and deliberately neglects others that deserve attention. ¹⁹⁰ The chances that we could develop plausible answers to those questions by consulting the political and moral theories now in general circulation ¹⁹¹ seem slim; a fresh approach of some sort appears essential. Second, like economic analysis, the utopian approach will prove capable of producing practicable suggestions for doctrinal change -- the attractiveness of which will lend credibility to the methodology. ¹⁹² Finally, with regard to the last-mentioned source of pessimism, it would indeed be foolhardy to attempt (in the midst of an article on the fair use doctrine, no less) to develop a complete and durable theory of the good. But the proper response to recognition of the limits of one's powers of imagination is not to keep one's peace, but to study other cultures and eras, read as broadly as one can in the relevant literature, and then venture one's best guess regarding the direction in which we ought to proceed -- expecting that the plan will be at least modified and perhaps transformed through conversation and experience. Part V is written in that spirit.

One last disclaimer is in order. The principal objective of both of the analyses deployed below is to develop a system for distinguishing permissible from impermissible uses of copyrighted materials. Neither Part dwells on the questions of how or by whom that system should be adopted. Thus, although most of the discussion concerns topics traditionally handled under the rubric of the fair use doctrine, when an argument crosses a border into another subheading of copyright law, it is pursued rather than abandoned. And, although the analyses occasionally take into account differences in the information-gathering and remedial powers of courts and legislatures in considering the feasibility of particular reforms, the question of whether those changes would comport with the proper allocation of functions between the three branches of our government receives no attention. ¹⁹³

Part IV: Economic Analysis
 
 

FOOTNOTES:

n179 This is not the only question that might occur to a reader of Parts I and II. At least two others spring to mind. First, what institutional arrangement would work better than the delegation of authority over such matters to the federal courts? Cf. Minami, Copyright in Japan, in FAIR USE AND FREE INQUIRY 237-41 (J. Lawrence & B. Timberg eds. 1980) (describing the Japanese fair use system, which combines detailed statutory provisions with mandatory mediation of disputes). The main reasons this issue will not be pursued here are: (i) for better or worse, we are most likely stuck for the time being with the current intellectual property regime; and (ii) in any event, before turning our attention to institutional alternatives, it makes sense to consider whether judges might be able to reconstruct a field of law that they invented.

Second, what could explain the Supreme Court's unfortunate choice of the system of factors and competing purposes described in Part II? To develop a plausible answer to that question, one would need to do more than simply advert to the proliferation in American law, during the second half of the twentieth century, of "balancing tests." See, e.g., C. DUCAT, MODES OF CONSTITUTIONAL INTERPRETATION 116-92 (1978); Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943 (1987). One would have to explain why the Court opted to employ a particular (and particularly unsatisfactory) kind of balancing test. Cf. Kahn, The Court, the Community, and the Judicial Balance: The Jurisprudence of Justice Powell, 97 YALE L.J. 1, 3 (1987) ("Not whether, but how, one balances is the interesting question.") In a separate essay, I venture a partial explanation. See Fisher, The Legacy of Legal Realism (forthcoming 1989) (observing that, in the past 25 years, the Supreme Court and lower courts have handled several other doctrines in ways remarkably similar to their treatment of the fair use doctrine and suggesting connections between that doctrinal form and the conception of wise adjudication bequeathed us by the Legal Realists).

n180 See, e.g., W. PATRY, supra note 6, at 456 n.520.

n181 See Baker, Starting Points in Economic Analysis of Law, 8 HOFSTRA L. REV. 939, 966-72 (1980); Kennedy, Cost-Benefit Analysis of Entitlement Problems: A Critique, 33 STAN. L. REV. 387, 422-29 (1981).

n182 See Radin, Market-Inalienability, 100 HARV. L. REV. 1849, 1859-70 (1987).

n183 See, e.g., Dworkin, Is Wealth a Value?, 9 J. LEG. STUD. 191, 194-210 (1980).

n184 See supra note 143 and accompanying text. That attitude derives in part from the utilitarian cast of the constitutional provision on which intellectual property law is based. See U.S. CONST. art. I, § 8, cl. 8 (indicating that Congress' goal in granting authors and inventors "exclusive rights to their respective Writings and Discoveries" should be "[t]o promote the Progress of Science and useful Arts").

n185 See, e.g., Breyer, supra note 144, at 291; Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors, 82 COLUM. L. REV. 1600, 1602-05 (1982); Hurt & Schuchman, The Economic Rationale of Copyright, 56 AM. ECON. REV. 421 (1966); Liebowitz, Copyright Law, Photocopying, and Price Discrimination, in THE ECONOMICS OF PATENTS AND COPYRIGHTS 181, 188 (Research in Law and Economics No. 8, J. Palmer & R. Zerbe eds. 1986). Some of these commentators defend their approaches partly on the ground that noneconomic goals either are too vague to be helpful in construing the law or are ill-served by the creation of intellectual property rights. See, e.g., Breyer, supra note 144, at 284-91; Hurt & Schuchman, supra, at 421-25; Light, Parody, Burlesque, and the Economic Rationale for Copyright, 11 CONN. L. REV. 615, 619-20 (1979). Those claims are assessed indirectly in Part V.

n186 See, e.g., Fried, Liberalism, Community, and the Objectivity of Values, 96 HARV. L. REV. 960, 968 (1983).

n187 See, e.g., Dworkin, Why Liberals Should Believe in Equality, N.Y. Rev. Books, Feb. 3, 1983, at 32.

n188 See A. MACINTYRE, supra note 175, at 1-5; Michelman, Art as a Public Good -- Commentary, 9 COLUM. J. ART & L. 158, 161 (1985) (observing that, although "we have not quite lost touch with the trans-empirical, trans-positivistic, trans-individualistic, trans-subjective notion of a truly public interest," such a notion has little currency in contemporary American "political culture" or legal scholarship).

n189 See infra section IV.D.7.

n190 For example, do artists and authors deserve some reward other than the amount of income necessary to keep them plying their trades?

n191 See supra pp. 1694-95.

n192 Cf. J. RAWLS, A THEORY OF JUSTICE 48-51 (1971) (discussing reflective equilibrium).

n193 I happen to believe that, leaving aside the pragmatic concerns mentioned in the text, there exists no principled objection to the adoption by the judiciary of even the most sweeping of the changes considered below, but defense of that proposition would take us far outside the law of intellectual property. Readers who disagree may treat the proposed reforms as suggestions for amendments to the copyright statute.