FACTORLESS FAIR USE? WAS MELVILLE NIMMER RIGHT?

The simplicity of the factorless fair use provision Professor Melville B. Nimmer proposed in 1964, saying little more than “fair use of a copy- righted work is not an infringement of copyright,” looks now like a wise recommendation. It’s not merely its simplicity. But it would also remove the tyranny of the “porous” four factors and the weighing and aggregating they impose, and the more than occasional Procrustean efforts to align them with the ultimate fair use outcome. The four factors would not be forsaken, only subordinated (along with the preamble purposes and any other considerations) to the ultimate question we probably ask and answer in each case: In light of the purposes of copyright law and the public inter- est, is there sufficient justification for the use to outweigh the copyright owner’s interests in prohibiting the use or at least in being compensated for that use, if an injunction is not warranted?