This is a summary of Professor Ginsburg’s topic of discussion and forthcoming article:
Fair use has gone off the rails, first with the Sony “Betamax” decision, and more recently with the transformation of “transformative use” from a factor fostering new creativity to one favoring new copyright-dependent business models and socially beneficent reiterative uses. We should cease muddling authorship-grounded fair uses with judge-made exceptions whose impetus derives from distinct considerations. Moreover, I suggest that the other exceptions should not always produce free passes. Instead, I propose that many of the current social subsidy fair uses and market failure fair uses be “permitted but paid,” and explore how we might implement that proposal.