Propertizing Fair Use

In its current form, fair use doctrine provides a personal defense that applies narrowly to the specific use by the specific user. The recently issued Supreme Court ruling in the landmark case of Google v. Oracle illustrates why this is problematic. While the Court ruled that Google's use of Oracle's Java API packages was fair, the ruling does not protect the numerous parties that developed Java applications for the Android operating system; it shelters only Google and Google's particular use. This is not an isolated problem; the per use/per user rule cuts across fair uses of copyrighted works, and it always leaves follow-on users in the cold. Authors, musicians, documentary filmmakers and media outlets who win fair use cases cannot freely market their works that incorporate fair use content, since their victories do not carry over to other users. Fair use under extant law is a very limited privilege.