PROPERTIZING FAIR USE

In its current form, fair use doctrine provides a personal defense that applies narrowly to the specific use by the specific user. The recently issued Supreme Court ruling in the landmark case of Google v. Oracle illustrates why this is problematic. While the Court ruled that Google's use of Oracle's Java API packages was fair, the ruling does not protect the numerous parties that developed Java applications for the Android operating system; it shelters only Google and Google's particular use. This is not an isolated problem; the per use/per user rule cuts across fair uses of copyrighted works, and it always leaves follow-on users in the cold. Authors, musicians, documentary filmmakers and media outlets who win fair use cases cannot freely market their works that incorporate fair use content, since their victories do not carry over to other users. Fair use under extant law is a very limited privilege. This Article proposes a far-reaching reform not only of copyright law as applied to software, but of the fair use doctrine itself. Our proposal consists of three interlocking elements. First, we call for the introduction of a new in rem conception of fair use, under which a fair use ruling would serve as a property remedy that shelters all subsequent users of works who fairly incorporate preexisting materials. Under this new conception, a finding of fair use would run with that new work, like an easement to all other distributors, broadcasters, publishers, performers and others who use it. The introduction of this new type of in rem fair use would result in the division of fair use into two conceptions—one in rem and one in personam—that would co-exist alongside one another. Second, we would grant judges discretion to decide which fair use conception, if any, should be granted in any particular case. Judges would be able to employ the traditional in personam rule, allowing fair use to avail only the specific defendant before it, or they could adopt an in rem fair use ruling, creating a property entitlement that runs with the work embodying the fairly incorporated content. Third, we propose two default rules to assist judges in making their decisions. Specifically, we propose that the default setting of fair use would depend on the type of use being examined. Where the claimed fair use consists of incorporating the protected copyrighted material in a new copyrighted work—such as the Android operating system—the default fair use would be of the in rem variety.