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The practice of copyright was once a perfect balance, reflecting the intent of the Founders to create an environment where new works were constantly made available to the public for consumption and use. The author would create a work, a user would buy a copy and be free to use it. Neither party had any right to interfere with the other’s activities. All of that changed with newer technologies, exposing the flaws both in our laws and the applications of them.

Copyright laws, on their face, prohibit many normal uses of copyrighted works by end users, such as making mixed tapes, converting LPs to mp3s, and playing music at a piano recital. But for the better part of two centuries, the end uses of copyrighted works were treated by the public, Congress, and courts as free from copyright’s purview. On the few occasions where a lawsuit was filed and the defendant felt that their use was the type which copyright was not intended to impact, they would assert a claim in equity, judges would make decisions on a case-by-case basis, and in that way, the early body of fair use law developed.Those judge-made principles were eventually codified in 17 U.S.C. §107.

Despite the equitable intent of fair use, it is now analyzed primarily as a matter of law and based on economic theory. This conservative take on fair use carried relatively few costs when infringement litigation was primarily between commercial actors and about for-profit uses, but as newer technologies emerged (e.g., photocopier, home recording devices, the web), the attacks have turned to individuals and non-profit entities for non-profit uses that were once considered immune from the copyright owner’s control.

The stakes in fair use litigation are therefore higher today than they have been in years past, potentially resulting in real harm to all. Any continued insistence on viewing fair use as a matter of law and economics only increases the jeopardy, as the value of copyright for society has nothing to do with financial interests. The balance of copyright has meaning beyond the laws in which any nation has embodied it, and for that reason, current attempts to exploit copyright in opposition to those principles should be challenged. This paper will put forth the argument that there remains a separate, equitable, common law claim for the use of knowledge that survives despite fair use’s codification in §107.