Computer Law Commons^™

This Article engages in a thought experiment. It asks whether fair use would be improved if courts gave exclusive consideration to only two of the four statutory factors: (1) the purpose and character of the use; and (2) the impact of the use on the market.6 In other words, fair use under this proposal would be converted from a contextual multi-factor test into a two-factor balancing test in which courts would expressly and directly weigh one consideration against another. The remaining two factors, i.e., the nature of the work and the amount used, would be eliminated from consideration or, alternatively, …