DOA at the Online Ramp

To say that the fair use doctrine has been gradually narrowed in recent years by the "market-centric" approach to the defense is relatively uncontroversial. What currently remains of the doctrine, and its probable future, are much more open to debate. My contention, perhaps given away by my rather colorful title, is that fair use will have no room to operate on the Internet of the very near future, and little room to operate in more traditional arenas. In support of my rather dire predictions, I will offer answers to two simple but crucial questions: (1) What are the present and future threats to the fair use doctrine; and (2) What are the possible sources of revitalization of the fair use defense? My answers to these questions unfortunately lead me to the conclusion that fair use is a defense with little wind left in its sails, both on and off the Internet. Despite these pessimistic conclusions, however, I will end this short essay with a rather bold assertion of the drastic steps needed to breathe new life into the doctrine. For although I foretell destruction like a prophet wailing at the gates of the city, I am a pragmatist above all things, and cannot bear to bemoan anything without offering a possible solution to the problem.