A Fair Use to Remember: Restoring Application of the Fair Use Doctrine to Strengthen Copyright Law and Disarm Abusive Copyright Litigation

October 30, 2018

The primary goal of copyright law is to benefit the public. By rewarding
authors with exclusive rights, such as the power to enforce copyright
infringement, copyright protection is the means through which copyright law
accomplishes this goal. Another way that copyright law pursues its goal is
through the fair use doctrine—an invaluable utilitarian limit on copyright
protection. However, fair use is, among other things, vague. The current
application of fair use as an affirmative defense magnifies the doctrine’s
problems and makes copyright law hospitable to abusive copyright litigation.

Current proposals in this area of reform target either fair use or abusive
copyright litigation. This Note targets both problems with a single solution:
applying fair use as a right. Applying fair use as a right alleviates some of
the doctrine’s inherent problems and is the best long-term solution for
eliminating abusive litigation from copyright law. As a right, fair use
protects copyright’s core values and goals, alleviates the burden on courts,
and cultivates creation. A review of the motivation behind fair use reveals
that as a right, fair use is best able to serve the purpose for which it was

November 2018

No. 2