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Market Failure And Intellectual Property: A Response To Professor Lunney, Wendy J. Gordon
Market Failure And Intellectual Property: A Response To Professor Lunney, Wendy J. Gordon
Faculty Scholarship
Professor Lunney's piece in this volume is interesting enough that I forgive him for misportraying my own work. In this short reply I will clarify my position, and then examine both the place of my market failure argument and the place of some of Professor Lunney's arguments within the future of Intellectual Property scholarship as a whole.
Excuse And Justification In The Law Of Fair Use: Commodification And Market Perspectives, Wendy J. Gordon
Excuse And Justification In The Law Of Fair Use: Commodification And Market Perspectives, Wendy J. Gordon
Faculty Scholarship
Over twenty years ago, the Journal of the Copyright Society of the U.S.A. reprinted my article, "Fair Use as Market Failure" (82 Columbia Law Review 1600 (1982), available at: https://ssrn.com/abstract=3577724. That 1982 piece suggested that an underlying pattern governs the protean forms of "fair use", and I employed the notion of market failure to reveal and explain how the pattern functioned. Since then, some misunderstandings of my argument have arisen.
I am pleased to publish in this, the Fiftieth Anniversary issue of the Journal of the Copyright Society, a clarification – and partial amendment – of my position. As …