New York University Public Law and Legal Theory Working Papers

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Fair Use and Legal Futurism, 24 Law & Literature __ (2012)


Legal futurism is a mode of legal discourse that forecasts the future and law’s role in it. The primary goal of legal futurist discourse is not, however, to formulate an accurate prediction of the future. Rather, its primary goal is to assert the continuing authority of law and the legal field of knowledge in the future, whatever form that future may eventually take. In copyright law discourse, and more specifically, in commentary and case law concerning the copyright law concept of fair use, the legal futurist mode typically takes the form of predictions of failure that are intended to be self-defeating. This brief essay argues that copyright discourse’s persistent practice of engaging in self-defeating prophecy is ill-advised. Due to the circular nature of copyright commentary and doctrine, such prophecies risk becoming self-fulfilling.

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