The Public's Right to Fair Use: Amending Section 107 to Avoid the "Fared Use" Fallacy

We also suggest that § 107 drop its potentially restraining first clause,156 and that it identify fair use as a right. These changes would further underline the importance of fair use, by making clear that it can playa role in cases involving the DMCA, that fair use is a crucial part of any conflicts analysis under preemption, and that the burden of proving all elements of fair use need not rest on the defendant. As the Supreme Court has said of the public's ability to copy unpatented inventions, the public's ability to "copy and to use" is a "right that cannot be lightly abandoned. Our Congress should explicitly declare that fair use deserves similar respect.