Document Type

Article

Publication Date

2026

Abstract

Between 1975 and 1994, the Supreme Court considered five cases that involved fair use: Williams & Wilkins v. United States; Sony v. Universal City Studios; Harper & Row v. Nation Enterprises; Stewart v. Abend; and Campbell v. Acuff-Rose. The papers of the Supreme Court Justices that decided these cases show the Court as a profoundly human institution with the Justices often struggling to fashion opinions that could gain the support of a majority. The Justices clearly cared about the copyright merits, but they were also willing to compromise to achieve a certain result. In several cases, the final opinion was anything but inevitable. This was particularly so with Sony Corporation of America v. Universal City Studios, 464 U.S. 417 (1984), where the effort to shape a holding that could garner the support of a majority of the Court stretched over two terms.

In recent decades, the fair use doctrine has assumed even greater importance to the U.S. economy because the lawfulness of reproductions made by digital technologies depends upon it. For example, fair use is the legal theory upon which developers of artificial intelligence rely to excuse the unauthorized ingestion of millions of works for the purpose of training large language models. In the relatively near future, the Supreme Court is likely to consider whether ingestion for AI training is a fair use. The secret deliberations that will occur within the Court may be similar to those described in this article.

Download

Share

COinS