Rulifying Fair Use

Fair use is a statutory legal standard that authorizes courts to determine whether a particular use of a copyrighted work is permissible without a license. The open-ended nature of fair use enables copyright law to remain flexible and adaptable to changing circumstances. At the same time, however, flexibility creates a high level of uncertainty regarding permissible uses, which may lead to a detrimental chilling effect. Consequently, while courts, scholars, and practitioners strive for more certainty in fair-use analysis, they are also concerned about losing the flexibility that comes with it.

Does fair use mandate case-specific decision-making, or does it also allow some elaboration into rules and guidelines? A recent Eleventh Circuit decision brought this issue to the forefront of legal discourse. In Cambridge University Press v. Patton, the court repudiated the attempt made by the lower court to offer a rulelike elaboration of fair use for educational purposes. This Article argues that the court’s rigid approach in Cambridge University Press reflects a misconception of the rule/standard distinction. The Article challenges the court’s binary approach to rules and standards, arguing that they should not be treated as mutually exclusive. While legal scholarship has generally focused on standardization of rules—i.e., elevating concrete rules to a higher level of abstraction—the opposite process of rulifying standards has been understudied. This Article proposes to fill this gap by offering a normative framework for rulifying fair use.

This Article argues that the open-ended nature of fair use should not be viewed as preventing courts from specifying the abstract standard into rules. Rather, the objective of copyright law mandates that courts elaborate the fair-use standard into rules for particular creative contexts through common-law adjudication.