Academic

Beebe on Fair Use & Judicial Ideology

By Lawrence Solum

Barton Beebe (Cardozo Law School) has posted Does Judicial Ideology Affect Copyright Fair Use Outcomes?: Evidence from the Fair Use Case Law (Columbia Journal of Law & the Arts, Vol. 31, No. 4, 2008) on SSRN. Here is the abstract:

This brief article reports the results of an empirical study of the effect, if any, of judicial ideology on outcomes in fair use case law. The data set for the study consists of all reported federal court opinions that made substantial use of the section 107 four-factor test for adjudicating the defense of fair use from the January 1, 1978 effective date of the Copyright Act through 2005, and includes, for each judge casting a vote in these opinions, the judge's values from various widely-accepted indices of judicial ideology. The study finds that judicial ideology has no significant effect on fair use outcomes - and concludes that this is not necessarily an encouraging outcome.

And from the conclusion:

It may be encouraging to learn that copyright fair use is not an area of the law in which judicial ideology appears to influence adjudication?and thus that copyright fair use is an exception to Sag, Jacobi, and Stych?s more general findings that judicial ideology affects intellectual property outcomes, at least before the Supreme Court.34 Yet one might tentatively observe that there is also something disturbing about these results. They are disturbing because copyright fair use should be ideological. As intellectual property scholars have long recognized, the stakes involved in fair use adjudication are immense. Fair use outcomes define the contours of the private and public domains of human expression and, in doing so, directly impact our capability for human flourishing.35 Fair use is far more than an economic area of the law calling for the post-ideological balancing of costs and benefits; it goes to the core of what constitutes a good society.36 Thus, while the ?politics of intellectual property?37 that James Boyle and others called for many years ago apparently has yet to make itself felt among the ranks of the federal judiciary, one might tentatively hope that some future study of this nature may yield different results.

Full post as published by Legal Theory Blog on June 26, 2008 (boomark / email).