SIVACRACY.NET

William McGeveran considers the question:

... Some people at the conference disliked thinking of fair use as “rickety.” They consider it robust, flexible, content-neutral, and so forth. But I think Patry and Vaidhyanathan are probably right. We may be heading for a crisis point where fair use cannot respond to all these different applications, from file-swapping to parody to reverse engineering and so forth. The problem is that I am not sure what the alternative could be. Congress is ill-suited to devise specific statutory exemptions for these sorts of unpredictable issues.

Maybe courts need to take more seriously the proposition (which is right there in the statute) that fair use is more than just the mechanical application of the four enumerated factors, and that judges may also include other considerations. Rather than wedging some important point into one of the four factors where it does not really fit, perhaps courts should be more willing to acknowledge that a crucial factor to their decision is in the “other” category. At least that could help avoid creating awkward precedent that later judges feel obliged to apply in factually distinct scenarios.