Fair Use Harbors

Document Type



The doctrine of fair use was originally intended to facilitate those so-cially optimal uses of copyrighted material that would otherwise consti-tute infringement. Yet the application of the law has become so unpre-dictable that would-be fair-users can rarely rely on the doctrine with any significant level of confidence. Moreover, the doctrine provides no defense for those seeking to make fair uses of material protected by anti-circumvention measures. As a result, artists working in media both new and old are unable to derive from copyrighted works the full value to which the public is entitled. In this Essay, we propose a solution to the uncertainty and unpredictability that plague the doctrine: nonexclusive safe harbors that define minimum levels of copying as per se fair uses. These bright-line rules would provide the clarity needed to facilitate countless productive uses that are currently being chilled. Furthermore, by providing an ex ante test for identifying uses as fair, these safe har-bors provide a framework for salvaging fair use in the digital age.

Date of Authorship for this Version

September 2007


Copyright, anti-circumvention measures, bright line rules, fair use, DMCA, Digital Millenium Copyright Act, rules versus vs. standards, safe harbor