Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Article Draft

Publication Date





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.



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.