David Fagundes, Market Harm, Market Help, and Fair Use (forthcoming 2014)
Judges, commentators, and practitioners alike agree that the final factor of copyright’s four-part statutory fair use defense to copyright infringement requires judges to consider “market harm.” That is, all sources understand this fair use factor to require analysis only of the deleterious economic effects of the defendant’s use on the market for or value of the plaintiff’s work of authorship. Yet this widespread consensus lies at odds with the plain language of the Copyright Act itself, which dictates that fair use analysis requires consideration of all economic effects—harmful and helpful—of an unauthorized use. This Essay investigates this puzzling gap between general practice and statutory text—the “market harm puzzle” … What would fair use analysis look like if courts simply followed the plain language of section 107, rather than the prevailing “market harm” interpretation of factor four? This thought experiment first provides a taxonomy of market help; then sketches the rough outlines of how this interpretation would cash out doctrinally; and finally considers prevailing objections to considering market help in a factor-four analysis.