by Mary Rasenberger and June Besek

One of the nation’s foremost appellate courts recently ruled in Authors Guild v. Google that Google’s unauthorized mass copying of millions of copyrighted books was “fair use” under U.S. copyright law.

What is “fair use”? Where did the doctrine come from? Where is it going? In this article, first published in the Media Law Resource Center Bulletin in May 2014, Mary Rasenberger (Executive Director of the Authors Guild) and June Besek (Executive Director of the Kernochan Center for Law, Media & the Arts at Columbia Law School) show how fair use has developed from a doctrine permitting one-off uses of copyrighted works for purposes such as criticism, classroom use, and parody, into a doctrine that—in some courts, at least—allows mass copying for commercial use without permission. The authors then challenge the recent expansion of the doctrine, arguing that it upsets the proper balance between the rights of creators and users, and contend that the issue of mass digitization in particular—because it affects so many rightsholders and has such broad policy implications—is a matter that should be resolved by Congress, not the courts.