I’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?

I often tell my students that Intellectual Property is like the “icing on the cake”—the “cake” being the structure created by a product or service to which Intellectual Property law (IP) applies.  As I will elaborate in a future post, this is one of the reasons why I like IP so much.  In other words, while the technical application of IP is undoubtedly complicated and challenging, IP is often just the last step of a production or creation process.  It is like the icing on a cake — that final layer that ties everything together.  Yet this layer is absolutely necessary to complete the work and often represents the sine qua non of why the public will buy the cake.  It determines whether a product will be successful or not.  This post, however, is not about IP theory . . . it is really about cakes, icing, and IP.