In this Article, Professor Bell examines the impact of new technologies on copyright's fair use doctrine. The Article examines the prospective capabilities of automated rights management technologies to monitor and track the exchange of information in digital intermedia, such as the Internet, that would enable copyright holders to bill consumers for use of their works. Professor Bell argues that these billing capabilities will cause a transformation in copyright law: a system of "fared use" will radically reduce the scope of the "fair use" defense. Upon examination of the effects of such a transformation, Professor Bell posits that a system of fared use actually may offer freer access to expressive works. Professor Bell argues that allowing copyright owners and consumers to exit copyright law and freely contract under a fared use system in time may reveal a system more beneficial than one preempted by federal copyright law. Professor Bell concludes by urging lawmakers and academics to await the emergence of new automated rights technologies and allow experimentation in the market to dictate copyright law's adaptation to such new technologies, rather than requiring new technologies to adapt to the traditional fair use doctrine.
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(C) 1998 North Carolina Law Review; reproduced here with permission. HTML derivative work (C) 1998-99 Tom W. Bell. All rights reserved.