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2011

University of South Carolina

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Fair Use As A Matter Of Law, Ned Snow Jan 2011

Fair Use As A Matter Of Law, Ned Snow

Faculty Publications

Courts have recently abandoned the centuries-old practice of construing fair use as an issue of fact for the jury. Fair use now stands as an issue of law for the judge. This change is threatening traditional contours of copyright law that protect fair-use speech. Courts, then, must reform their current construction of fair use by returning to its origins— fair use as a factual matter for the jury. Yet even if courts do construe fair use as a matter of fact, the question remains whether courts should ever decide fair use as a matter of law. To answer this question ...