Why custom cannot save copyright's fair use defense

This article is a short reply to Richard Epstein's comments on my article, The Questionable Use of Custom in Intellectual Property, 93 Virginia Law Review 1899 (2007). In the underlying article, I critique the general preference of courts to incorporate customary practices into intellectual property law. In this reply, I disagree with Professor Epstein's claim that custom should be dispositive in some instances to determine the scope of copyright's fair use defense. Although I observe that for some individual parties various customary practices may be cost-effective, their incorporation into the law expands the scope of copyright in ways that unreasonably limit and undervalue fair uses. Epstein's preference for private ordering is flawed, at least in the IP context, because suboptimal customs will develop due to market inequalities, the complexity of the IP industries and the dearth of ongoing relationships and repeat players.
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