Fair Use and Legal Education

copyrightI’ve just read Pam Samuelson’s recent article, Unbundling Fair Uses. For this article, Samuelson reviewed just about every fair use opinion since 1978, and reached the conclusion that fair use cases fall into 8  discrete clusters. Within most of those clusters, “it is generally possible to predict whether a use is likely to be fair or unfair.” [2542]

Although others have made this sort of argument before (e.g., copyright giant Alan Latman in a 1960 legislative study, and Mike Madison in a 2004 article), Samuelson is cutting deeply against the grain of modern copyright scholarship in her conclusion. As she notes, the opinion is nearly unanimous among modern copyright scholars (including, I confess, me) that fair use is profoundly unpredictable, a crap shoot. As Larry Lessig has pithily quipped, “Fair use is the right to hire a lawyer.”

For me, one of the most interesting questions that arises from Samuelson’s article is, if she’s right, how could so many copyright scholars have gotten it wrong? And what does that have to do with teaching Civ Pro?

Samuelson doesn’t really address the question of where everyone else has gone wrong. But she drops a hint in noting with approval Barton Beebe’s recent conclusion: “[M]uch of our conventional wisdom about fair use case law, deduced as it has been from the leading cases, is wrong.” [2543, emphasis added] By “leading cases” Barton and Samuelson mean the Supreme Court’s decisions on fair use in cases such as Harper & Row and the Betamax case. [2542 n.29] In other words, if all you focus on is the Supreme Court, and not the mass of lower-court decisions, fair use looks pretty confusing.

This exactly mirrors a concern I have when I teach personal jurisdiction in Civil Procedure. The personal jurisdiction section of most casebooks is essentially a tour of the development of Supreme Court caselaw on the issue since 1877. I’ve been frustrated, and the students have been too, by this focus: essentially, the Supreme Court hasn’t really been able to spell out a coherent story about when personal jurisdiction exists for about a century now. Cases seem to veer crazily from one case to the next. What I think the students miss during this review of the caselaw is the sense that, when you get down to the circuit court level, personal jurisdiction analysis is much easier. There is more caselaw that fills in the gaps, and it often provides clearer tests that annotate the delphic pronouncements from the Supreme Court.

The best example of this that leaps to mind is the Supreme Court’s somewhat anomalous decision in Calder v. Jones, in which the Court seemed to abandon International Shoe and rant for a couple of pages about why National Enquirer employees should be held to answer for libel in California. (The Supreme Court was on an anti-libel-defendant rampage: Keeton v. Hustler was decided the same day.) Several circuits have broken the Court’s short but rambling opinion down into a 3-part test, and have added some useful direction on when each of the parts is satisfied. In other words, like Samuelson has concluded about fair use, I think personal jurisdiction clusters into more predictable patterns when you look at a more routine, “normal science” array of cases.

Unfortunately, there simply isn’t time in Civil Procedure to delve into each sub-issue in that amount of detail. It’s occurred to me that it might be possible, however, to teach at least the personal jurisdiction portion of Civ Pro by focusing on the law of just one state and circuit—e.g., Wisconsin and the Seventh Circuit, where we happen to be located. I already do this to some extent, but there are a couple of concerns that I have about skipping the Supreme Court opinions entirely. One is the amount of time it would take to assemble a whole chapter on personal jurisdiction from scratch. But the other is that such an approach might give rise to a different problem, missing the forest for the trees. For the moment, I’m sticking with the strategy of teaching the “magic words” of personal jurisdiction, and just assuring my students that when they get into practice and have to research the law of any given jurisdiction, the truth will be out there.

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