Abstract

This paper lays out the case for understanding and applying copyright's fair use doctrine in terms of social practices that exist side-by-side with arms' length market transactions. It argues that the goal of fair use is, has been, and should be to promote the same creative ends that copyright as a whole serves, but that copyright and fair use should do so by recognizing that in certain contexts, creative expression emerges from social dynamics that not only do not depend on market exchange, but even thrive outside of it. A claim of fair use ought to succeed, then, if the claimant is acting in the context of a recognized social practice. The text of Copyright Act and the Supreme Court's fair use jurisprudence are consistent with such a modestly flexible and contextual approach.