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Abstract

This Article examines two important features of many copyright fair use cases: transformative use and commercial intermediation. While the issue of transformative use has arisen in many fair use cases, there is a lack of consistency and clear guidance on the meaning of “transformativeness” and how the degree of transformativeness is to be assessed. Additionally, in analyzing commercial use, courts have largely failed to appreciate the distinctive role played by “commercial intermediaries” in facilitating socially beneficial uses of copyrighted works. This Article advances economically grounded proposals for improving the way in which courts analyze transformative use and commercial intermediation.

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