New Ideas on Fair Use

7th Circuit Judge Richard Posner and (one time professor of mine) Bill Patry are advocating an interpretation of 'fair use' that they think would solve the copyright term extension issues (setting the unconstitutionality of such issues aside).

They argue (in a forthcoming article in the California Law Review) that if a

"copyright owner hasn’t taken reasonable steps to provide notice of his continued rights, as by entering his name and address in a copyright registry ... if an Eldred wanted to publish some old work, he would consult the registry or registries and if no owner was listed ... he could publish it without a license."

See Fair Use and Licensing. Judge Posner is guest blogging all this week at Lessig Posner Blog.

More from Judge Posner:

The uncertainty concerning the proper scope of IP rights is magnified by the onrush of technology. As I said, repeating a Lessig point, law is relative to technology; technology can disrupt a balance carefully struck by law. But if we have no clear sense of where the balance should be struck, this makes it difficult to know what stance to take with relation to encryption technologies that enable IP owners to obtain greater protection from copiers than IP law would give them.

I am distrustful of people who think they have confident answers to such questions.

(from A Few Closing Thoughts)