Precedent matters, especially for fair use cases about new tech
Modak-Truran 23 (Michael Modak-Truran, Law Clerk at Skadden in the Intellectual Property and Technology Transactions practice. “Is a Fair Use Forever Fair?” NYU Law Review Volume 98, Number 3, June 2023. Accessed 6/19/2024. https://www.nyulawreview.org/wp-content/uploads/2023/06/98-NYU-L-Rev-962.pdf) wtk
While that analysis decides whether a use is fair, is a fair use forever fair? Do technologies that are deemed fair uses in the past necessarily constitute fair uses in the present? Courts, enmeshed in “rapidly changing technological, economic, and business-related circumstances,”15 cannot predict the future, but their decisions of whether a use is fair are binding precedent on future generations. This dynamic upsets the careful balance in copyright law between the rights of content creators and access to copyrighted works by the public. To explore this tension, this Note considers what Judge Pierre Leval classified as “utility-expanding transformative fair uses,”16 or technologies that have the capability to deliver copyrighted content in particularly efficient or novel ways.