Fair Use and Market Failure: Sony Revisited

Abstract

With the development and dissemination of digital technology, the importance of private copying and its legal status, whether fair or unfair under copyright law, has only increased. Yet, despite its status as the Court's first and only pronouncement on the issue, Sony has played surprisingly little role in this ongoing debate. Even in cases bearing seemingly close similarity to the home-taping at issue in Sony itself, such as the private, home copying of musical works, courts have refused to follow Sony's fair use outcome. Having been narrowly construed as an exceptional instance of market failure, Sony seldom appears to have direct application to fair use cases generally, and courts have repeatedly rejected application of the Sony analysis outside of its specific factual context. Ironically, until "clarified" by the Court in Campbell, courts relied on certain dicta in Sony limiting the availability of the fair use doctrine for commercial uses far more than they relied on Sony's actual fair use holding. In this Article, I would like to revisit Sony with the aim of achieving, if not a radical rewriting, at least a rational revitalization of Sony and copyright's fair use doctrine more generally. Properly understood, Sony stands not for the proposition that fair use is justified only in those exceptional cases where a licensing scheme or some other market mechanism is impractical. Rather, Sony stands for the recognition of fair use as a central and vital arbiter between two competing public interests. On the one side, a use that is considered fair and is allowed to continue may indirectly lead to fewer works of authorship by reducing the incentives to create such works. On the other, allowing such use to continue may directly improve the public's ability to use, transform, or otherwise obtain access to existing works.

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