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Leval, Pierre N. Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990)
Communication Law and Policy  (IF),  Pub Date : 2020-07-02, DOI: 10.1080/10811680.2020.1767419
Patricia Aufderheide

In 1990, Pierre Leval, who had served as a federal trial judge in New York for twelve years, wrote a twenty-nine-page commentary in the highly influential Harvard Law Review. The essay addressed the interpretation of the copyright doctrine of fair use, or the right to reuse copyrighted material without permission or payment under some circumstances. In it, he argued that in the absence of a clear bright-line standard, judges were using ad hoc reasoning that resulted in confusing law. Although the article openly disagreed with other judges, it was written with diplomacy and a wry wit. He charged himself, along with others, with previously following a “rudderless” path of reasoning about fair use. He argued for a rule of reason anchored in the concept of “transformative use” — a term he coined to describe reuse for a new or different purpose. This, he wrote, would give judges a way to interpret the four factors that the 1976 Copyright Act reform codified: the nature of the new work, the nature of the original, the amount or importance of the material used, and effect on the market. It would fit nicely within the declared purpose of U.S. copyright law, to encourage creation of works for public education. He swatted down interpretative arguments that would drag in other law, such as privacy or theft. He returned throughout to copyright’s utilitarian purpose of providing incentives for creation of work for public education, and warned against eliding it with authors’ moral rights, which do not exist in the United States.