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Fair use has historically served as a flexible and adaptable mechanism for balancing the interests of copyright owners, their competitors or potential competitors, and the public to fulfill the larger purposes of copyright law which have traditionally been understood to be promoting the production and dissemination of knowledge.1 Given this history, it is perhaps surprising how little use has been made, until very recently, of fair use as a defense to software copyright infringement claims, especially considering the high volume of such litigations in the past dozen years. 2 The most plausible explanation for the dearth of software related fair-use cases is that the first decade of software litigation concentrated on more fundamental questions, such as whether copyright 1 See, e4g., L Ray Patterson, Free Speech, Copyright and Fair Use, 40 VAND.L. REV. 1 (1987) [hereinafter Patterson, Free Speech] (discussing fair use as a balancing mechanism for mediating among the interests of authors, publishers, and the public in order to fulfill the underlying purposes of copyright law).2 There were a few cases in the first decade of software copyright litigations in which fairuse defenses were raised, although they were not given much attention.See, eg., Allen-Myland, Inc. v. International Business Machs., 746 F. Supp.520 (E.D. Pa.1990) (holding that database of IBM-authored software kept on behalf of IBM customers to whom AMI provided modification services was not fair use), recons.denied, 770 F. Supp.1004 (E.D. Pa.1991).It may also be that, with the presumption against fair use when defendants have commercial purposes that the Supreme Court established in Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984), software copyright defendants have, until recently, been reluctant to raise fair-use defenses since most of the litigated cases have involved commercial competitors.See infra note 63 (concerning the Sony presumption of unfairness when defendants have commercial purposes).There has also been remarkably little discussion of fair use in the ample law review literature on copyright protection for computer programs.Two notable exceptions are Leo J. Raskind, The Uncertain Case For Special Legislation Protecting Computer Software, 47 U. Prrr.L. REv.1131 (1986) (noting absence of fair-use analysis in computer software copyright cases) and Stephen K Tapp & Daniel E. Wanat, Computer Software Copyright Issues: Section 117 and Fair Use, 22 MEM.ST.U. L. REv.197 (1992) (taking narrow view of usefulness of fair use in computer software cases).See also Pamela Samuelson, Modifying Copyrighted Software: Adjusting Copyright Doctrine to Accommodate a Technology, 28 JuRIdETRIcS J. 179 (1988) [hereinafter Samuelson, Modifying Software] (analyzing adequacy of current defenses, including fair use, to copyright infringement action); Pamela Samuelson, Computer Programs and Copyright's Fair Use Doctrine, 36 CoMMs.OF THE A.C.M. 19 (Sept.1993) (evaluating fair use and how the courts have dealt with it in recent decisions).
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