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Predicting Fair Use

NCJ Number
Ohio State Law Journal Volume: 73 Issue: 1 Dated: 2012 Pages: 47-91
Matthew Sag
Date Published
45 pages
This article examines whether objective factors in fair use litigation in copyright cases affect the outcome of these cases.
The author of this article analyzed a set of objective factors related to fair use litigation in copyright cases and found that core statutory fair use factors of creative shift and direct commercial use played a significant role in determining the outcome of fair use litigation, with creative shift leading to a favorable fair use outcome while direct commercial use was less likely to lead to a positive fair use outcome. The remaining statutory factors of partial copy, commercial use, creative work, unpublished work, and industry separation were found to have an insignificant effect on fair use litigation outcomes. The author also examined the effect of party status and empowerment variables, as well as industry variables, on fair use litigation outcomes. It was found that the courts were more likely to find in favor of the defendant in fair use cases if the defendant was a natural person, as compared to a corporation; conversely though, courts were less likely to find in favor of the defendant in fair use cases if their attorney was less experienced than their opponents. The analysis also found that when party status and empowerment characteristics were considered, the factors of defense industry group and plaintiff industry group had no significant effect on litigation outcomes. The author suggests that these findings indicate that the fair use doctrine is an integral part of the copyright system and that its use in litigation supports the rights of copyright owners. Tables, figures, and appendix


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