Under provocative titles like "fared use" and "the end of friction," commentators argue about whether or not the doctrine of "fair use" should exist in a world of instantaneous transactions. As collecting societies like the Copyright Clearance Center become more powerful, and technologies like the internet have made it possible to purchase digital copies by clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. Courts like the Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present or possible. The presence of 'traditional, reasonable, or likely to be developed markets', they say, counts heavily against fair use. The only exception, a later decision suggests, might lie in the ill-defined category of transformative uses. For exact copies, it seems, the presence of a licensing mechanism might be fatal to fair use. This is a dangerous direction for copyright law.
Wendy J. Gordon, Draft of The Public's Right to Fair Use (Aug. 17, 2007) (unpublished manuscript).