There was a fair use symposium held at Columbia Law School last Friday. Rebecca Tushnet posted her notes from 3 of the events: Paul Goldstein's keynote (43(B)log: Paul Goldstein on copyright in context), Panel 2, which looked at the question of how the four factors are structured and used in court cases, and Panel 3, which deals more expansively with the whole idea of fair use. Panel 1 notes are not yet posted, but it would be a good idea to visit Rebecca's blog now and read about the events she has already posted. The symposium appears to have been a very heady thing, with lots of theorizing. Not a lot of nuts and bolts stuff here, but very, very thoughtful analysis of both theory and function. For another look at Paul Goldstein's keynote, visit Fairly Useful, where Matthew Sag posted his notes from the talk.
Several points piqued my interest: there certainly was a grounding of the discussion in the realities of how courts decide cases (by what they think the outcome should be, mainly focusing on factor 1 and 4). And it was very apparent that some of the participants take the "author's rights" or "natural rights" starting point and others take a more utilitarian point of view about the purpose of copyright. As David McGowan has pointed out in Copyright Nonconsequentialism, you come out in a different place on how you think fair use should be interpreted (or any other aspect of copyright law) when you start in a different place.
All in all a very interesting discussion. For additional commentary about fair use, this symposium, and a weekend NY Times article about the JK Rowling Harry Potter fan site Lexicon case, visit Madisonian.net's blog post (Mike Madison) titled, Does Fair Use Matter? Madison pulls together thoughts about the scope of copyright's murkiest doctrine from a number of our best thinkers on the subject.
