Pamela Samuelson, the always intriguing Richard M. Sherman Distinguished Professor of Law at Berkeley Law School, has posted a new paper on SSRN titled “Unbundling Fair Use.”  In the paper, Samuelson argues that judges and scholars should “stop wringing their hands about how troublesome fair use law is, and look instead for common patterns in the fair use case law upon which to build a more predictable body of fair use law.” Says Samuelson:

This Article argues that fair use law is both more coherent and more predictable than many commentators have perceived once one recognizes that fair use cases tend to fall into common patterns, or what this Article will call policy-relevant clusters. The policies underlie modern fair use law include promoting freedom of speech and of expression, the ongoing progress of authorship, learning, access to information, truth-telling or truth-seeking, competition, technological innovation, and privacy and autonomy interests of users. If one analyzes putative fair uses in light of cases previously decided in the same policy cluster, it is generally possible to predict whether a use is likely to be fair or unfair.

Professor Samuelson then proceeds to categorize fair use cases, dictating exclusions and standards-based analysis when they are applicable to individual clusters.  Samuelson also raises an interesting argument in her conclusion in regards to creating a burden on plaintiffs if a fair use defense is raised:

Courts should treat fair use as they would statute of limitations defenses, which a defendant must raise in answering a complaint, after which the burden shifts to the plaintiff to demonstrate that the acts complained were recent enough to be within the limitations period. Given the important role that fair use plays in mediating tensions between copyright law and the First Amendment and other constitutional values, it would be appropriate for the burden of showing unfairness to be on the copyright owner.  When deciding whether to challenge a use as infringement, rights holders often anticipate that fair use will be at issue in the case, and they are typically in a better position than defendants to offer proof on key issues pertinent to fair use, such as the likelihood of harm to the market. If copyright owners cannot show that a use is likely to cause harm to markets for their works, why shouldn’t the use be allowed as fair? At the very least, copyright owners should bear the burden of proving unfairness in free speech/expression, personal use, and litigation use cases.