Campbell at 21/Sony at 31

INTRODUCTIONThe occasion for this symposium is that Campbell v. Acuff-Rose Music, Inc.1 had its twenty-first birthday earlier this year, and has therefore achieved its majority. We've been invited to examine Campbell's "profound influence on fair use."2 When the Court handed down the Campbell decision twenty-one years ago, the opinion garnered generally positive reviews.3 More recently, the decision, or its application by lower courts, has inspired significant criticism. The most common complaint is that Campbell's instruction to focus on the transformativeness of defendant's use has given lower courts license to find a use fair whenever they are so inclined.4When copyright lawyers gather to discuss fair use these days, the most common refrain is its alarming expansion.5 This distress about fair use's enlarged footprint seems completely untethered from any appreciation of the remarkable increase in exclusive copyright rights. It's uncontroversial that the scope of U.S. copyright has expanded in the past fifty years.6 It covers a broader array of copyrightable subject matter.7 It lasts longer.8 It grants owners additional rights.9 Court decisions have expanded the scope of traditional copyright rights.10 Congress has greatly enhanced the remedies for infringement.11 Individuals and organizations supporting strong copyright laws applaud these expansions.12 These same interests express surprise and dismay that, over the past fifty years, the fair use privilege has come to shelter a broader range of uses.13I have no reason to doubt the sincerity of those expressions of dismay. The idea, though, that copyright owners' rights could be greatly inflated without inspiring a comparable expansion in fair use seems delusive. If many, many more uses are arguably prima facie infringing now than before, it follows that fair use will need to stretch to permit more of them. None of the voices expressing the hope that fair use could be confined or returned to its mid-twentieth century boundaries seem to endorse a proposal to cut back copyright rights to their mid-twentieth century limits.14 They have been steadfast in insisting that it would be dangerous to allow Congress to consider balancing expanded copyright with appropriately expanded express limitations and exceptions.15 They urge, nonetheless, that fair use must be narrowly contained.16If Campbell is twenty-one years old, that means that another Supreme Court fair use case, Sony Corp. of Am. v. Universal City Studios,17 had its thirty-first birthday in January. Some copyright lawyers with long memories identify Sony as the Supreme Court case in which fair use started to go wrong.18In the 1976 Copyright Act, Congress replaced a scheme of bounded, defined copyright rights specified for each copyright subject-matter category with a broad statement of generally applicable copyright exclusive rights offset by a list of detailed exceptions.19 It also codified the doctrine of fair use. The Sony case, filed within weeks of the 1976 Act's enactment, was the first case to pose the question whether fair use was an appropriate shelter for conduct that Congress had failed to consider.20 Answering that question in favor of either party would require some revision in traditional understandings of fair use.In Sony, the Court reshaped fair use in order to limit contributory liability and shelter personal uses.21 That fair use formulation didn't work out so well for traditional beneficiaries of the fair use privilege, most of whom made uses that were both public and commercial.22 In Campbell, the Court revised fair use again for the benefit of traditional fair users.23 That might have left personal users out in the rain. But in the ten years that the Sony test had held sway, readers, consumers, and businesses that made products to augment consumers' enjoyment of copyright works had adjusted their expectations and habits to a world in which fair use shielded personal uses from copyright liability. …