From Volume 83, Number 4 (May 2010)
This Article proposes a framework tailoring the fair use doctrine specifically for technology cases. At the inception of the twenty-first century, information technologies have become increasingly central to the U.S. economy. Not surprisingly, complex copyright cases involving speech technologies, such as DVRs, MP3 devices, Google Book Search, and YouTube, have also increased. Yet existing copyright law, developed long before digital technologies, is ill prepared to handle the complexities that these technology cases pose. The key question often turns not on prima facie infringement, but on the defense of fair use, which courts have too often relegated to extremely fact-specific decisions. The downside to this ad hoc adjudication of fair use is that it leads to an uncertainty over what is permissible that may impede innovation in speech technologies. This Article addresses this ongoing problem by proposing that courts recognize a specific type of fair use—technological fair use—and tailor the four fair use factors accordingly. Technological fair use is supported not only by a synthesis of existing case law and economic theory, but also, more importantly, by the constitutional underpinnings of the First Amendment and the Copyright and Patent Clause.