Law Commons^™

Fair Use For Free, Or Permitted-But-Paid?, Jane C. Ginsburg

Faculty Scholarship

The U.S. Supreme Court in Sony Corporation of America v. Universal City Studios fended a fork in the fair use road. The Court there upset the longstanding expectation that uses would rarely, if ever, be fair when the whole of a work was copied. In the aftermath of that decision, lower courts have rendered a plethora of decisions deeming the copying of an entire work (even with no additional authorship contribution) a fair use, and therefore "free" in both senses of the word. A perceived social benefit or some market failure appears to motivate these decisions. This is because fair …