Document Type


Publication Date

Summer 2005




Case Western Reserve University School of Law




Thank you for inviting me to address the Symposium. It is an honor to participate in the exchange of such interesting and informed views, and to be back at Case.

The original title for my talk had been Warring Frameworks for Fair Use. I had intended to discuss two interpretations of market failure analysis, and to suggest how resolving the conflict between those warring frameworks might resolve a variety of fair use issues.

But then it struck me that this might not be what you, a group made up of both generalists and specialists, would most want in a luncheon address. Current debate sparks with claims that the fair use doctrine is dangerous to the values it supposedly protects, or that the doctrine is dead. Therefore, if I spent my time on the internal details of fair use, you might object that I was teaching you to embroider on the fabric of a burning curtain.

So let us defer discussing those details. My time today might be most fruitfully spent asking if fair use is a doctrine that indeed endangers its own goals - and if it is not, exploring whether the doctrine itself is endangered.


Keynote. Symposium on Copyright and Personal Copying: Sony v. Universal Studios Twenty-one Years Later

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