Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors

  title={Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors},
  author={Wendy J. Gordon},
  journal={Law \& Society: Private Law - Intellectual Property eJournal},
  • W. J. Gordon
  • Published 1 December 1982
  • Economics
  • Law & Society: Private Law - Intellectual Property eJournal
The text of "Fair Use as Market Failure" has three times been reprinted in full: in 1 Intellectual Property and Business (Stephen E. Margolis & Craig M. Newmark, eds., Edward Elgar Publishing: Business Economics Series. 2010); in 1 The Economics of Intellectual Property 377-434 (Ruth Towse & Rudi W. Holzhauer, eds. Edward Elgar Publishing, 2002); and at 30 Journal of the Copyright Society 253-326 (1983). 

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A]bout 12 percent of the requests came from private or commercial organizations, particularly drug companies

    See supra text accompanying notes I 15-I6

      When Congress in 1971 expressed a belief that home audio recording "over the past 20 years" was not an infringement, Nimmer, supra note 125

      • 1947

      Economics seeks to satisfy consumer tastes, however they may evolve, and assumes "that man is a rational maximizer of his ends in life

      • 1978

      the court refused, on fair use grounds, to enjoin defendants from producing an index that

        See the discussion of the substantial injury hurdle, supra text accompanying notc;s 295. 17 U.S.C. § 107 (Supp

        • 1980

        Professor Nimmer himself urges in support of his conclusion the practicality of various methods of payment, thus revealing an implicit concern with market cure

          Thus it is fair use that must be applied if home audio recording is to be immune from liability, and such recording is clearly "an intrinsic use

          • Code Cong. & Ad. News 1566, 1572), the only possible legal basis for that belief was fair use. Id

          But see Goldstein, supra note 39, at 1056 ("The infringer is ... the sole proponent of the generalized interest in access

            Moreover, he intimates a willingness to accept an economic justification for fair use