Matthew Sag

Predicting Fair Use

Fair use is often criticized as unpredictable and doctrinally incoherent - a conclusion which necessarily implies that the copyright system is fundamentally broken. This article confronts that critique by systematically assessing the predictability of fair use outcomes in litigation. Concentrating on characteristics of the contested use that would be apparent to litigants pre-trial, this study tests a number of doctrinal assumptions, claims and intuitions that have not, until now, been subject to empirical scrutiny. This article presents new empirical evidence for the significance of transformative use in determining the outcomes of fair use cases. It also substantially undermines conceptions of the doctrine that are hostile to fair use claims by commercial entities and that would restrict limit the application of fair use as a subsidy or a redistributive tool favoring the politically and economically disadvantaged. Based on the available evidence, the fair use doctrine is more rational and consistent than is commonly assumed.

Ideology and exceptionalism in intellectual property: An empirical study

This article investigates the relationship between ideology and judicial decision-making in the context of intellectual property. Using data drawn from Supreme Court intellectual property cases decided in between 1954 and 2006, we show that ideology is a significant determinant of cases involving intellectual property rights: the more conservative a judge is, the more likely he or she is to vote in favor of an intellectual property claim. However, our analysis also shows that there are significant differences between intellectual property and other areas of the law with respect to the effect of ideology. This analysis has important implications for the study of intellectual property. It also contributes to the broader judicial ideology literature by demonstrating the effect of ideology in economic cases.

Digital archives: Don't let copyright block data mining

Matthew L. Jockers, Matthew Sag and Jason Schultz explain why humanities scholars have pitched in to the Authors Guild v. Google lawsuit.