Free speech was once an integral part of copyright law; today it is all but forgotten. At common law, principles of free speech protected those who expressed themselves by using another's expression. Free speech determined whether speakers had infringed a copyright. To prevail on a copyright claim, then, a copyright holder would need to prove that the speaker’s use fell outside the scope of permissible speech - or in other words, that the use was not fair. Where uncertainty prevented that proof, fair use would protect speakers from the suppression of copyright. Today, however, all this has changed. Copyright has deeply buried any remnants of free speech, redefining the doctrine of fair use as a pretext for piracy that aims to excuse infringing conduct. Copyright enforcement has become the norm and fair use the exception, resulting in a presumption against fair-use speech. Uncertainty no longer protects speakers; it damns them. The change from fair use as a strong right of speech to fair use as a weak excuse for infringement occurred subtly, unintentionally, and without reason. It was a mistake. Quickly becoming widespread, the mistake swiftly eroded speech protections in copyright. If left unchecked, the mistake will become immutable. This Article traces the history of fair use from its birth as a strong right of speech to its deterioration into a weak excuse for infringement.
Ned Snow, The Forgotten Right of Fair Use, 62 Case W. Res. L. Rev. 135 (2011).