The Supreme Court has said that copyright’s fair use doctrine is a “First Amendment safety valve” because it ensures that certain crucial cultural activities are not unduly burdened by copyright. While many such activities (criticism, commentary, parody) have benefited from the courts’ increased attention to First Amendment values, one such activity, education, has been mired for years in a minimalist, market-based vision of fair use that is largely out of touch with mainstream fair use jurisprudence. The latest installment in the history of educational fair use, the 11th Circuit’s opinion in the Georgia State University e-reserves case, may be the last judicial word on the subject for years to come, and I argue that its import is primarily in its rejection of outdated guidelines and case law, rather than any affirmative vision of fair use, which the court studiously avoids. Because of the unique factual context of the case, it stops short of bridging the gap between educational fair use and modern transformative use jurisprudence. With help from recent scholarship on broad patterns in fair use case law, I pick up where the GSU court left off, describing a variety of common educational uses that are categorizable as transformative, and, therefore, entitled to broad deference under contemporary fair use doctrine. In the process, I show a way forward for vindicating fair use rights and First Amendment rights, by applying the transformative use concept at lower levels of abstraction to help practice communities make sense of the doctrine.
