Lee and Moshirnia (2021)
Contents
Source Details
| Lee and Moshirnia (2021) | |
| Title: | Does Fair Use Matter? An Empirical Study of Music Cases |
| Author(s): | Lee, E., Moshirnia, A. |
| Year: | 2021 |
| Citation: | Lee, E. (2021) Does Fair Use Matter? An Empirical Study of Music Cases. Southern California Law Review, Vol. 94, No. 3, 2020 |
| Link(s): | Open Access |
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| About the Data | |
| Data Description: | Data were obtained from 503 subjects recruited through Amazon Mechanical Turk.
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| Data Type: | Primary data |
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| Cross Country Study?: | Yes |
| Comparative Study?: | No |
| Literature review?: | No |
| Government or policy study?: | No |
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Abstract
“Copyright law recognizes fair use as a general limitation. It is assumed that fair use provides breathing room above and beyond the determination of infringement to facilitate the creation of new works of expression. This conventional account presupposes that fair use matters—that is, fair use provides greater leeway to a defendant than the test of infringement. Despite its commonsense appeal, this assumption has not been empirically tested. Except for fair uses involving exact copies (for which infringement would otherwise exist), it has not been proven that fair use makes much, if any, difference in results. Indeed, in one sector, the music industry, defendants have avoided pursuing fair use as a defense in nearly all infringement cases (except parodies) decided under the 1976 Copyright Act. This fair use avoidance is surprising given that musicians now face a spate of lawsuits due to a predicament we call copyright clutter, which occurs when copyrights protect many sub-elements of many works in a field of creation, thereby making it difficult for people to create a new work in that field without facing exposure to copyright liability. If fair use provides breathing room, why do musicians avoid it? Despite the extensive literature on fair use, legal scholarship has yet to test if fair use really matters. This Article provides the first empirical testing of the significance of fair use as a defense. In an experimental study involving approximately 500 subjects, we found that fair use does make a difference: subjects found no liability more frequently under fair use than the test of infringement. And greater knowledge of music or law resulted in higher findings of no liability under fair use. These findings provide a better theoretical understanding of how fair use operates and practical information for litigants that calls into question the predominant strategy of musicians avoiding fair use as a defense. Such a strategy may result in greater findings of liability where fair use would have otherwise been found.”
Main Results of the Study
• Subjects were more likely to find no infringement in cases analysed under fair use than substantial similarity (finding no liability in 50.7% cases where substantial similarity was tested, vs 60.2% for fair use). However, subjects tended to be more confident about their decision-making when using the substantial similarity test (p<.0009), perhaps due to the more complex balancing of fair use factors.
• The greater a subject’s knowledge of music or law, the more sensitive they were to a change in legal rule. The likelihood to find no liability under fair use was more likely for both groups, being more pronounced for those with a legal background, and slightly less for those with a musical background.
Policy Implications as Stated By Author
The study does not make any explicit policy implications. Instead, the authors suggest that fair use provides ‘greater leeway to creators under copyright law than a defense simply contesting the test of infringement’, suggesting in turn that fair use is a more viable litigation strategy for musicians facing an infringement claim.
Coverage of Study
Datasets
| Sample size: | 503 |
| Level of aggregation: | Individual |
| Period of material under study: |
