Patry on Fair Use

In a follow-up posting on Google Print and fair use, Bill Patry writes:

I have increasingly come to find the traditional four factor fair use analysis not only unhelpful, but harmful to looking at uses that may promote the progress of science and not injure copyright owners’ interests. We would have been much better off had the 1976 Act simply said in Section 107 “Notwithstanding the provisions of Section 106, the fair use of a copyrighted work is not an infringement.” Putting four factors in the statute has made courts and the rest of us think that Section 107 either “codifies” fair use (it doesn’t), define fair use (no again), or somehow provide a way in a real case to assist in determining the outcome, and here I would say the statute does the most harm: the temptation is almost overwhelming to run through the factors, cite previous decisions about how and what the factor entails, is to be weighed etc. and then to tally up who was naughty and who was nice and to what degree. That’s an artificial approach and maybe intellectually dishonest in some cases if we reach a conclusion first and then fill in the “reasoning” afterwards.

To which I add: Bravo!