Fair Use is inherently gendered and forces women to arbitrate “fairness”

Fair use liberates authors to fairly copy, adapt, or embed portions of pre-existing content into their own new creative endeavors. Fair use enables intermediaries to fairly develop new content delivery models and distributive technologies without incurring secondary liability. Consumers utilize fair use when they fairly make noncommercial backup or auxiliary copies of copyrighted works they have purchased or use them in a way that might otherwise infringe one or more of the exclusive rights held by copyright owners.23 One can only avail herself of fair use by using fairly, which limits and complicates the doctrine, but encompasses considerations far more expansive than commercialization and monetary exchange. To the extent that women and men may construe fairness differently, the definition of fair use is susceptible to gendered shadings. Fair use determinations invoke ethical and moral considerations, which many observers believe are influenced by gender.24 The cultural gendering of fair use is observable when, for example, a representative of the Recording Industry of America asserts about peer-to-peer music uploading and downloading: “I don’t think your mother had in mind this kind of sharing.”25 Good mothers, according to the view implicit in this comment, establish a moral paradigm of intellectual property use by their children that does not encompass putatively infringing behaviors.26 Why the comment references “mothers” rather than “parents” suggests that the speaker sees women as important arbiters of copyrights and “copywrongs.”27 Generalizations about divergences between the views and behaviors of women and men are of limited utility, and they risk assuming either too much difference or similarity between the sexes, as well as too much uniformity within them.