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Yale Law School




Jim Gibson is right that courts should be wary of letting the mere presence of licensing improperly foreclose the defense of fair use. 1 As he says, a court in a copyright infringement case should not treat the existence of a market for licenses of the work as a factor weighing against the defendant’s claim of fair use until the court has examined “why [that] licensing market exists.”2 However, Gibson fails to distinguish the varying reasons licensing might be relevant to a fair use determination. As a result, the solution he proffers— attributing relevance to licensing only in markets free of excessive risk aversion—is both over- and under-inclusive. Ironically, his approach also overstates the importance of the existence of markets to the proper determination of fair use questions. In the following, I hope to clarify the role that market existence should play in fair use.

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