Abstract
The application of the fair use doctrine to services which provide and associate information about a work with the work itself has proved to be an enigma. Even since Judge Leval’s seminal 1990 article, circuit courts have applied precedent to a new paradigm of available information inconsistently. In particular, the Second Circuit’s ruling in Fox News v. TVEyes represents a subtle step backward from that circuit’s progressive rulings in Authors Guild v. Google and Authors Guild v. HathiTrust. With little recent Supreme Court jurisprudence on fair use, and no rulings on critical uses of content made available by third party services such as TVEyes and Google Books, the TVEyes decision provides a perfect opportunity for the Supreme Court to refine the fair use framework in this context. This article argues that the Supreme Court ought to accept TVEyes’ petition for certiorari in order adopt what the author terms the “broad view” of fair use that the Second Circuit used in both Google Books and HathiTrust. The broad view of fair use appropriately balances the intellectual property rights provided under copyright law with incentivizing creative expression by both extending the market-harm rule in Campbell v. Acuff-Rose to information about a work and finding transformative use where the work or how it is accessed is transformed.
Last Page
53
Recommended Citation
Kyle Richard,
Fair Use in the Information Age,
25
Rich. J.L. & Tech
1
(2024).
Available at:
https://scholarship.richmond.edu/jolt/vol25/iss1/4