# Fair Use and Legal Futurism

**Authors:** Barton Beebe
**Citation:** "Fair Use and Legal Futurism," 25 *Law & Literature* 10 (2013)
**Source:** https://doi.org/10.1525/lal.2013.25.1.10

*p. 2*
Consider two past predictions of the future of U.S. copyright law. First, the National Commission on New Technological Uses of Copyright Works (CONTU) speculated in its 1978 Final Report that the emergence of the electronic distribution of copyrighted materials might work to the benefit of copyright holders, since this new distribution technology would mitigate some of the deleterious effects of the technology then foremost on CONTU's mind: ''[Electronic distribution] may ease the problem which has been caused by the wide availability of photocopying machines capable of producing copies quickly and relatively inexpensively. If the copyright owner possesses material in digital form on tapes or other storage devices and sells access to such material by contracts with users, the copyright owner may have more effective control over unauthorized use than over information distributed in printed form.'' 1 Second, and more notoriously, the 1995 Report of the Working Group on Intellectual Property Rights of the U.S. Commerce Department's Information Infrastructure Task Force (a report commonly known as the White Paper) suggested that with the emergence of Internet technology, ''it may be that technological means of tracking transactions and licensing will lead to reduced application and scope of the fair use doctrine.'' 2 Both of these moments in the history of the predicted future of U.S. copyright law show the perils of what might be termed ''legal futurism.'' By legal futurism, I mean a mode of legal discourse that forecasts the future and law's role in it. This legal futurist mode may take many forms. 3 At its most ambitious, it may predict a very general, all-encompassing, macroscale ''image of the future'' 4 -for example, a future dominated by science rather than law, 5 or by the increasing risk of ecological collapse, 6 or by the struggle between the proletariat and holders of capital. 7 In more modest forms, it may predict specific, micro-scale conditions-for example, an increase in crime and prison populations, 8 or the development of ''weather modification'' technology, 9 or as above, the emergence of ever-moresophisticated Internet technology. In addition to varying along the dimension of scale, specific instances of the legal futurist mode also tend to vary between the poles of optimism-for example, the future ''elimination of employment barriers based upon sex'' 10 -or, more commonly, of pessimism-for example, a return to ''ancient doctrine'' and feudalism in the aftermath of an ''all-out atomic war.'' 11 Relatedly, specific instances tend to vary between presenting the predicted future as utterly inevitable, regardless of any legal or other intervention-''I think the United States will become authoritarian in the future, but will be able to stave off totalitarianism for some time'' 12 -or, more commonly, as contingent upon the success or failure of some proposed legal reform-''We are aboard a train running down the rails out of control . . . . The challenge is obvious: Will it be met?'' 13 The two government reports quoted above show the perils of legal futurism in that both appear to have gotten the future completely wrong. Though the Internet has not brought about the ''death of copyright'' 14 as many predicted 15 (and still predict), 16 there is no question that Internet technology has challenged the viability of copyright law to an extent that makes the threat of the photocopy machine seem trivial by comparison.

*p. 4*
Meanwhile, micro-licensing technology has not materialized to an extent that could reasonably be seen to affect the overall scope of fair use. Instead, with the recent rapid emergence of user-generated content, the application of the fair use doctrine has not receded, but rather has expanded enormously. 17 The ''Internet 2.0'' has made fair use doctrine not less, but more, far more, important.

*p. 4*
But it would be wrong to assess legal futurist discourse only, if at all, by whether its auguries have proven correct, for such discourse is typically not primarily concerned with accurately predicting the future. In this brief and speculative essay, I consider what motivates legal commentators to adopt the legal futurist mode. I do so by focusing on copyright law discourse and, more specifically, on commentary and case law concerning the copyright law concept of fair use. I argue that legal commentators adopt the legal futurist mode in an effort above all to assert the continued authority of law and the legal field of knowledge and practice in the future, whatever that future might eventually be. As fair use discourse evidences, present-day legal speakers typically assert this authority over and against what they perceive to be the primary challenger to legal authority in the future: the field of scientific and technological knowledge and practice. Strangely, this assertion of authority typically takes the form of predictions that are intended to be self-defeating. The fair use commentator will state, for example, that he ''forecast[s] an increasingly troubled future, if not the demise of the doctrine of fair use,'' and will do so precisely in an effort to resuscitate fair use and preserve its continued relevance. 18 This essay proposes (albeit paradoxically) that copyright discourse's persistent practice of engaging in self-defeating prophecy with respect to fair use and other areas of copyright doctrine is ill-advised. Due to the circular nature of copyright commentary and doctrine, such prophecies risk becoming self-fulfilling.

*p. 4*
The early modern period's recognition of human history and historical change formed the foundation for the modern era's distinctive interest in the future-distinctive because this future has been imagined primarily as human-made rather than god-given. This interest has expressed itself most notably under the rubric of ''progress.'' 19 From the eighteenth century through to the first decade of the twentieth century, the dominant philosophical and literary images of the future were generally optimistic. 20 Our sense of the future-and of the metanarrative of progress-has since become considerably more complicated. Adding to this complexity is the emergence in the postwar period of the academic discipline of ''futurology,'' which reached the height of its influence in academia and government in the 1960s and eventually found popular expression in best-selling works such as Alvin Toffler's Future Shock (1970) and John Naisbitt's Megatrends (1982), as well as in the Club of Rome's controversial and exceptionally pessimistic The Limits to Growth (1972). 21 By comparison, it is unclear what a general history of the future of U.S. law might show-perhaps great optimism among legal commentators in the early national period followed by a kaleidoscope of competing images of the future of the law up to the present. In recent decades, however, it is clear that one of the main motivations of legal futurist discourse is to assert that the law and legal knowledge will continue to be relevant in the future. Of course, utopian writers have long imagined ideal societies that have no law because they have no need of it. 22 In Looking Backward: 2000-1887, Edward Bellamy's Doctor Leete explained: ''We have no such thing as law schools . . . . The law as a special science is obsolete . . . . [O]nly a few of the plainest and simplest legal maxims have any application to the existing state of the world.'' 23 But these anarchical visions have never posed a serious threat to the authority of legal knowledge. In the postwar period, by contrast, and particularly since the late 1950s, lawyers have perceived the extraordinary power and rapid advance of scientific and technological knowledge as a challenge to their continuing authority. The ''space law'' moment in the history of U.S. law is now largely forgotten, but in the years following Sputnik, lawyers had a very real fear that science would supersede law as the ordering force in an increasingly technocratic society-if not on earth, then certainly off of it. 24 More recently, lawyers have suggested that ''West Coast Code'' (i.e., software) would supplant ''East Coast Code'' (i.e., law). 25 Meanwhile, the ascendancy of the economic and now the empirical approach to law has lent great credence to Holmes's prediction that ''the man of the future is the man of statistics and the master of economics.'' 26 If lawyers have thus felt compelled to protest in a variety of contexts that ''a future role remains for the law,'' 27 intellectual property lawyers have been especially well-positioned to make this assertion. Intellectual property law is itself intensely futurist in orientation. Its constitutionally prescribed mandate to ''promote the progress of science and useful arts'' 28 casts the law as a driver of scientific and technological progress. Indeed, intellectual property law propounds the orthodoxy that but for the economic incentives provided by intellectual property protection, such progress in the future would not occur. At the same time, the law justifies exclusive rights in nonrival intellectual goods on the grounds of dynamic efficiency, that is, on the grounds that the present-day costs of such rights will be outweighed by the future gains to the public domain once the terms of such rights expire. 29 The essentially futurist orientation of intellectual property law may explain why so much intellectual property law commentary adopts the legal futurist mode. 30 Perhaps the best example of this is found in the work of Larry Lessig, who begins the prefaces to both Code and The Future of Ideas by considering various scenarios of the future of the Internet-and who concludes the latter of these books with a quite explicit prediction of the dystopian future of technological and intellectual innovation. 31 Intellectual property lawyers are especially prone to engage in legal futurism when they speak of copyright fair use. 32 This should not be surprising. As many commentators have observed, fair use has long enabled copyright law to accommodate new and unforeseen reproduction and distribution technology. 33 At its best, it facilitates technological innovation, 34 such as the basic architecture of the Internet, and expressive innovation, such as, at least until recently, the hip-hop and industrial styles of appropriationist music. 35 Furthermore, the technical doctrine of fair use explicitly calls for prospective thinking. The fourth factor of Section 107's multifactor balancing test requires courts to consider, among other things, the impact of the defendant's conduct on the ''future market'' for the plaintiff's work. 36 T

*p. 6*
The history of fair use over the past four or five decades has been marked by a shift from a reasonably optimistic-or, in any case, hopeful-sense of the future of the doctrine to a deeply pessimistic, even fatalistic belief that fair use is doomed. This shift is apparent in how commentators have come to judge the notorious vagueness of fair use doctrine. In the 1960s and '70s, the drafters of Section 107 anticipated that the flexibility and openendedness of fair use would be the source of its strength in the decades to come. Now the fear is that copyright owners are exploiting this flexibility to narrow to nothing the scope of the doctrine.

*p. 7*
The drafting history of Section 107 of the Copyright Act of 1976 suggests that the framers of the section were reasonably sanguine about its future prospects. Two main questions dominated negotiations over the wording of the section: first, whether it should address in detail the practice of photocopying in the educational context, and second, whether it should contain factors to determine fair use or otherwise present a simple, ''bare bones'' 37 statement of the doctrine-essentially in the form of a statement that fair use exists: ''Notwithstanding the provisions of section 106, the fair use of a copyrighted work is not an infringement of copyright.'' 38 Advocates of the factors approach eventually won out, and the final version of Section 107 contained in its preamble a brief reference, in the form of a parenthetical, to ''multiple copies for classroom use.'' Nevertheless, Section 107 as passed was-and remains-sufficiently open-ended to allow fair use doctrine to evolve, particularly in response to new technology. Commentators of the time considered this to be a great virtue of the doctrine. 39 Although fair use commentary of the 1970s and '80s tended of course to be critical of and seek improvements in the development of the doctrine, it was not nearly as pessimistic as the typical fair use article today 40 -indeed, it could be profoundly idealistic. 41 Sentiment has changed considerably in the past two decades. The very malleability that was once a virtue of fair use doctrine now leaves it exposed to powerful efforts to constrict its scope, so that some commentators now speak of the ''death of fair use.'' 42 One prominent commentator's recent diagnosis is more restrained, but representative nevertheless: ''Fair use is indeed ill, though hardly dead yet.'' 43 The more pessimistic among fair use commentators tend to engage in what they presumably hope to be self-defeating prediction. For example, another prominent commentator sees ''little practical future'' for fair use ''as traditionally defined.'' 44 A recent note predicts that ''the current trends in fair use will eventually eliminate fair use for schools, colleges, and universities.'' 45 Others speak of a ''nightmare future'' for the doctrine. 46 The malleability of fair use presents a problem, however, for what are intended to be self-defeating predictions. It has long been recognized that one significant danger of the self-defeating prediction is that those exposed to it may adjust their expectations and actions in such a way as to bring about precisely what the predictor seeks to avoid. This is an especially valid concern in the intellectual property law context and, more specifically, in the fair use context. Although attention tends to focus on the degree to which changes in technology may affect the fair use calculus, it is important to recognize as well that because fair use is such an amorphous body of doctrine and its outcomes so unpredictable, it is also highly susceptible to shifts in conventional wisdom and in custom. 47 Meanwhile, fair use commentators may be tempted to overstate just how bad things have gotten in an effort to shock the reader into action-or, to adapt from a common complaint about ''modern futurist hypochondria,'' in an effort simply to argue for the importance of their commentary. 48 When commentators repeatedly focus on outlier cases as harbingers of things to come, this focus may itself eventually make those cases appear to be mainstream. Courts may mistake the alarmist description of the law as accurate, and rule accordingly. 49 Just as there is thus a danger to the present of self-fulfilling descriptions, 50 so there is a similar danger to the future of unintentionally self-fulfilling predictions.

## C O N C L U S I O N

*p. 8*
This brief essay has sought to engage the question of what the actual effect of legal futurist writing about fair use might have on the doctrine itself in the future. If fair use commentary is largely epiphenomenal, then we need not be concerned about any risk of the self-fulfilling prediction. But we are then left with the question of whether the doomsday predictions so common among fair use commentators today may actually be accurate-and that the conditions predicted are unpreventable. But if fair use commentary does have an effect on fair use doctrine, then we are still left to contemplate the possibility that doomsday predictions may help to bring about the conditions predicted. This peculiar double bind-on the one side, Cassandra, on the other, Oedipus-is a feature of all futurist writing, but is especially problematic in relation to a body of doctrine as underdetermined as fair use.