I often recommend Bill Patry's copyright blog and I sure hope I haven't worn out my ability to recommend his postings another time, because this one is really, really worth a read: The Patry Copyright Blog: Judge Posner’s “How Judges Think”.
It's a bit abstract, compared to some, and it's long (as Bill's posts usually are). Also, the first part of his review of Judge Posner's book is about things that, while interesting, are not the main focus of my post here. Because near the end, Patry covers Posner's getting at something that I've been trying to express for many years, and I've never managed to say it so effectively as Judge Posner (surprise!). This is one of the most well-known, respected judges sitting on the bench today, who has a publication history someone twice his age (were that possible) would be hard-pressed to match, so of course, he's eloquent.
But more importantly, he knows what he's talking about because he is a judge and he's been one for 27 years and when this pearl comes from him, it doesn't seem to need anything more to give it credibility.
It's the pragmatism thing. He says it right straight out.
The judge is wont to ask himself in such a case what outcome would be the more reasonable, the more sensible, bearing in mind the range of admissible considerations in deciding a case, which include but are not exhausted by statutory language, precedents, and the other conventional materials of judicial decision making, but also including common sense, policy preferences, and often much else besides. (page 207).
Patry continues his explanation of how Judge Posner thinks, referring to a case that Patry himself tried before Judge Posner:
... some, like Judge Posner try to figure out what is the most pragmatic result, guided by the factors he listed in the above quote, and then write an opinion that is straightforward in explaining why the result is the most pragmatic -- as compared to falsely pretending the result was dictated by an external force (e.g., the statute or precedent).The Ty case is a great example of his approach: his opinion reads like a time-line of his thought processes, the end of which is – “oh yeah, there are these statutory factors in section 107, but they aren’t helpful here.”
It is nice to feel that something as difficult as fair use really does have at its heart, a reasonableness inquiry. Maybe that only punts the ball, after all, as Patry points out, his reasonableness argument in Bill Graham Archives v. Dorling Kindersly failed to carry the day. Reasonable minds can disagree about which result is most reasonable. But at least *that" is the inquiry with fair use, rather than a mechanical checking off of a selection of the facts that can be made to fit our case (whoever we are).
So, as I would argue, if you are ever in a position to try to win a fair use argument, if you aren't addressing why your result is the most reasonable, overall, the best for everyone, you aren't speaking the judge's language.
Well, at least not Judge Posner's language.
