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Fisher Fair Use Part V

Fisher Fair Use Part V - William Fisher Reconstructing the...

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William Fisher Reconstructing the Fair Use Doctrine 101 Harv. L. Rev. 1661, 1744-1783 (1988) Part V: Utopian Analysis This Part considers how the fair use doctrine might be rebuilt if one's ambition were not merely to reduce inefficiency in the use of resources, but to advance a substantive conception of a just and attractive intellectual culture. Section A sets the premises of the analysis by adumbrating a vision of the good life and the sort of society that would facilitate its widespread realization. Section B confronts and rejects the argument that using legal doctrine to nudge the United States in the direc- tion of that vision would be unacceptably [*1745] "paternalistic." Section C considers how a well-informed court or legislature might advance the utopian agenda by differentiating between fair and unfair uses of copyrighted materials. Section D distills from that analysis a set of considera- tions that could be incorporated reasonably easily into the current fair use doctrine. *** A. Premises What sort of social order should we strive to achieve? Most of the writers who in recent years have addressed this age-old question fall into one of two camps. Utilitarian theorists argue that our goal should be to identify and institute the system that would maximize "general happiness," meas- ured by the sum of the pleasures minus the sum of the pains experienced by the members of the so- ciety, taking due account of the intensity -- but no account of the character -- of the desires whose satisfaction or frustration gives rise to those pleasures and pains. n361 The members of the other group -- perhaps best described as "Kantian liberals" n362 -- reject the utilitarians' aggregative cri- terion for resolving conflicts between individuals' preferences on the ground that it often counsels subordinating the interests of some persons to the interests of others, a result offensive to our con- ceptions of justice. n363 The ambition of the Kantian philosophers is to formulate guidelines for the design of the social and political system that do not entail judgments regarding alternative aspira- tions or ways of living [*1746] but instead accord all persons the respect they are due as autonomous moral agents. n364 The theory summarized below, though it incorporates many arguments developed by the utili- tarians or their opponents, takes a different tack. It proceeds from the propositions, sometimes as- sociated with the Aristotelian tradition of moral philosophy, that there exists such a thing as human nature, which is mysterious and complex but nevertheless stable and discoverable, that people's na- ture causes them to flourish more under some conditions than others, n365 and that social and po- litical institutions should be organized to facilitate that flourishing. n366 Adequate development of such an argument is clearly beyond the scope of an article on copy- right law. This section does no more than set forth, in the form of postulates, those aspects of the vision that bear on the shape of intellectual property law and direct readers to more thorough de- fenses and criticisms of each tenet.
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