Under provocative titles like "Fared Use', and '"the end of friction," commentators argue about the viability of copyright's fair use doctrine in a word of instantaneous transactions. As collecting societies such as the Copyright Clearance Center extend their licensing prowess, and Internet-based electronic commerce has made it possible to purchase digital copies with the click of a mouse, the suggestion is sometimes made that fair use could or should disappear. Decisions in the Second and Sixth Circuits have hinted that fair use may be foreclosed if a licensing market exists or is possible. The presence of "traditional, reasonable, or likely to be developed markets", they say, counts heavily against fair use although a later decision suggests that fair use might still be viable in the ill-defined realm of transformative uses. For exact copies, it seems, the presence of a licensing mechanism might be fatal to fair use. This is a perilous direction for copyright law.
Wendy J. Gordon & Daniel Bahls, Fair Use, "Fared Use," and Public Rights: Amending Section 107 (August 19, 2007) (unpublished manuscript).