Litman on 'Billowing White Goo' (aka copyright history)

Billowing White Goo is a new essay by Jessica Litman, University of Michigan. It is forthcoming in the Columbia Journal of Law & the Arts. Here's the abstract:

In this paper, written for a symposium on Fair Use: Incredibly Expanding or Extraordinarily Shrinking?, I argue that the size of the fair use footprint has remained about the same over the past three decades, while the size and scope of copyright's exclusive rights have expanded markedly. In order to protect a broader range of worthy uses under the fair use umbrella, courts have adopted new tests tailored to privilege particular sorts of uses, but in doing so they haven't expanded fair use so much as they have moved it around. In part I of the paper, I briefly summarize the recent history of fair use from the Copyright Office's initial recommendations that Congress codify it through the tests the courts have articulated for applying it. I then turn to the expansion in exclusive rights under section 106. Some of that expansion derives from the architecture of the 1976 Act. Although Congress sought, with particular exceptions, to draft the statute to incorporate the substance of extant law, it drafted the bounded exclusive copyright rights in broad terms and the exceptions to those rights in specific terms. Over 30 years, the specifically worded exceptions have grown obsolete much more quickly than the broadly worded exclusive rights, leaving those rights subject to fewer and narrower exceptions than when the law was enacted. This may be a poor design for copyright laws in policy terms, but it was a choice Congress made. In contrast, the massive recent expansion in the scope of individual section 106 exclusive rights is occurring outside of the legislative process. Advocates have persuaded courts to construe each of the once-bounded exclusive rights more broadly. Once discrete exclusive rights are morphing into an all-purpose general use right. Our understanding of copyright is evolving into the notion that all uses of copyrighted work must be authorized, either by the statute or by the copyright owner. Unauthorized uses, it would follow, must be piracy. I argue that that construction of the copyright statute is completely untenable, especially as it applies to personal uses. Moreover, I suggest, expansion of that sort is as a practical matter inconsistent with a resolve to keep fair use cabined within traditional boundaries as a special privilege for exceptional cases.