|Title:||Predicting Fair Use|
|Citation:||Sag, M. (2012). Predicting fair use. Ohio State Law Journal, 73, 1.|
|Link(s):||Definitive , Open Access|
|Key Related Studies:|
|Linked by:||Cotropia and Gibson (2014)|
|About the Data|
|Data Description:||This study is based on a unique dataset of more than 280 fair use cases decided in U.S. District Courts between January 1, 1978 and May 31, 2011. The dataset combines publicly available information from written opinions and court records, as well as data from other sources such as company databases and the Martindale-Hubbell directory of attorneys and law firms.|
|Data Type:||Primary and Secondary data|
|Secondary Data Sources:|
|Data Collection Methods:|
|Data Analysis Methods:|
|Cross Country Study?:||No|
|Government or policy study?:||No|
|Time Period(s) of Collection:||
Fair use is often criticized as unpredictable and doctrinally incoherent - a conclusion which necessarily implies that the copyright system is fundamentally broken. This article confronts that critique by systematically assessing the predictability of fair use outcomes in litigation. Concentrating on characteristics of the contested use that would be apparent to litigants pre-trial, this study tests a number of doctrinal assumptions, claims and intuitions that have not, until now, been subject to empirical scrutiny.
This article presents new empirical evidence for the significance of transformative use in determining the outcomes of fair use cases. It also substantially undermines conceptions of the doctrine that are hostile to fair use claims by commercial entities and that would restrict limit the application of fair use as a subsidy or a redistributive tool favoring the politically and economically disadvantaged. Based on the available evidence, the fair use doctrine is more rational and consistent than is commonly assumed.
Main Results of the Study
Main results of the study:
- The evidence from litigated cases analyzed in the article confirms the centrality of transformative use.
- Transformative use by the defendant is a robust predictor of a finding of fair use.
- The results of this study also confirm the significance of the statutory factor that addresses “the amount and substantiality” of the defendant’s unauthorized use of the plaintiff’s work. Although the effect is not as large as was transformative use, there is clear evidence confirming that partial copying weighs in favor of the defendant’s assertion of fair use.
- It is also apparent from the data that there are many strong cases of fair use involving copying the entirety of the plaintiff’s work. Technologies that rely on digital processing of entire copyrighted works, such as Internet search engines and plagiarism detection software, nonetheless present a very strong case for fair use.
- There is no evidence that commercial use (in contrast to direct commercial use) reduces the defendant’s chance of maintaining a fair use defense.
- Regression analysis of the effect of party status variables on the probability of a finding of fair use either failed to find the predicted underdog effect or found exactly the opposite.
- This study offers considerable evidence against the oft-repeated assertion that fair use adjudication is blighted by unpredictability and doctrinal incoherence.
Policy Implications as Stated By Author
- Other jurisdictions may be considering importing the fair-use doctrine in to their own copyright laws. For example, the Hargreaves report, commissioned by the British government, ultimately recommended against grafting a U.S.-style fair use exemption onto English copyright law because, in part, of the perceived uncertainty of fair use.
- Although the Hargreaves Commission appears to have accurately understood the potential benefits of fair use, it, like many American commentators, has misunderstood and exaggerated the costs.
- Standards are not necessarily more unpredictable than rules nor is flexibility the same thing as unpredictability. The evidence presented in the study suggests that fair use is not nearly so incoherent or unpredictable as is conventionally assumed.
Coverage of Study
|Level of aggregation:||US District Court Cases|
|Period of material under study:||1978-2011|