Consent, User Reliance, and Fair Use

Kevin J. Hickey
16 Yale J.L. & Tech. 397

This Article examines the underappreciated role of consent and refusal in copyright law’s fair use inquiry. As a matter of black letter law, the nature and circumstances of a copyright holder’s refusal to consent to a use are irrelevant to whether a particular use is fair. This “standard view” effectively treats all situations short of affirmative consent—such as silence or acquiescence from a copyright holder—as equivalent to an express refusal. Despite the standard view, a close analysis of the case law reveals that some courts implicitly consider consent-based factors in fair use decisions. Other courts, however, adhere strictly to the standard view and disregard consent across the board. Is there a principled basis to consider the nature of consent and refusal in the fair use analysis?
This Article argues that consent, properly conceived, has an important role to play in certain categories of fair use cases. In particular, consent-based considerations should not be disregarded when they are relevant to the traditional fair use factors and fair use’s underlying goal of promoting socially-valuable uses. To make this argument, the Article creates and analyzes a model of the consent-seeking interactions between copyright holders and users. It concludes that a literal application of the standard view neglects important user reliance interests and fails to deter costly opportunistic behavior. The nature of the copyright holder’s consent or refusal, therefore, has a critical role to play in situations involving user reliance interests, such as cases of “partial consent,” bad faith strategic behavior, and digital opt-out systems. In these cases, consideration of consent and refusal accords with the traditional fair use factors and the doctrine’s history as an “equitable rule of reason,” and operates to creates a broader scope for fair use.