Empiricial Study of U.S. Copyright Fair Use Opinions

An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005 (pdf) by Barton Beebe (Cardozo) is available PENNumbra (pdf). The article presents "the results of the first empirical study of our fair use case law to show that much of our conventional wisdom about that case law is mistaken." From the introduction:

Working from a data set consisting of all reported federal opinions that made substantial use of the section 107 four-factor test for fair use through 2005, the Article shows which factors and subfactors actually drive the outcome of the fair use test in practice, how the fair use factors interact, how courts inflect certain individual factors, and the extent to which judges stampede the factor outcomes to conform to the overall test outcome. It also presents empirical evidence of the extent to which lower courts either deliberately ignored or were ignorant of fair use doctrine set forth in the leading cases, particularly those from the Supreme Court. Based on these descriptive findings, the Article prescribes a set of doctrinal practices that will improve courts’ adjudication of the fair use defense.

Very interesting. [RJ]