Imagine this: a high-profile aerospace and media billionaire threatens to sue you for writing an unauthorized and unflattering biography. In the course of writing, you rely on several news articles, including a series of in-depth pieces about the billionaire’s life written over a decade earlier. Given their closeness in time to real events, you quote, sometimes extensively, from those articles in several places. 

On the eve of publication, your manuscript is leaked. Through one of his associated companies, the billionaire buys up the copyrights to the articles from which you quote. The next day the company files an infringement lawsuit against you. 

Copyright Censorship: a Time-Honored Tradition

It’s easy to imagine such a suit brought by a modern billionaire—perhaps Elon Musk or Jeff Bezos. But using copyright as a tool for censorship is a time-honored tradition. In this case, Howard Hughes tried it out in 1966, using his company Rosemont Enterprises to file suit against Random House for a biography it would eventually publish.

As we’ve seen many times before and since, the courts turned to copyright’s “fair use” right to rescue the biography from censorship. Fair use, the court explained, exists so that “courts in passing upon particular claims of infringement must occasionally subordinate the copyright holder’s interest in a maximum financial return to the greater public interest in the development of art, science and industry.” 

Singling out the biographical nature of the work and its importance in surfacing underlying facts, the court explained: 

Biographies, of course, are fundamentally personal histories and it is both reasonable and customary for biographers to refer to and utilize earlier works dealing with the subject of the work and occasionally to quote directly from such works. . . . This practice is permitted because of the public benefit in encouraging the development of historical and biographical works and their public distribution, e.g., so “that the world may not be deprived of improvements, or the progress of the arts be retarded.”

Fair use playing this role is no accident. As the Supreme Court has explained, the relationship between copyright and free expression is complicated. On the one hand, the Court has explained,  “[T]he Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” But, recognizing that such exclusive control over expression could chill the very speech copyright seeks to enable, the law contains what the Court has described as two “traditional First Amendment safeguards” to ensure that facts and ideas remain available for free reuse: 1) protections against control over facts and ideas, and 2) fair use. 

But rescuing a biography that merely quotes, even extensively, from earlier articles seems like an easy call, especially when it seems so clear that the plaintiff has so clearly engineered the copyright suit not to protect legitimate economic interests but to suppress an unpopular narrative.  

The world is a little more complicated now. Can fair use continue to protect free expression from excessive enforcement of copyright? I think so, but two key areas are at risk: 

Fair Use and the Archives

It may have escaped your notice that large chunks of online content disappear each year. 

For years, archivists have recognized and worked to address the problem. Websites going dark is an annoyance for most of us, but in some cases, it can have real implications for understanding recent history, even as officially documented. For example, back in 2013, a report revealed that well over half of the websites linked to in Supreme Court opinions no longer work, jeopardizing our understanding of just what went into why and how the Court decided an issue.  

While most websites disappear from benign neglect, others are intentionally taken down to remove records from public scrutiny.  Exhibit A may be the 8,000+ government web pages recently removed by the new presidential administration, but there are many other examples (even whole “reputation management” firms devoted to scrubbing the web of information that may cast one in an unfavorable light). 

The most well-known bulwark against disappearing internet content is the Internet Archive, which has, at this point, archived over 900 billion web pages. Over and over again, we’ve seen its WayBack Machine used to shine a light on history that powerful people would rather have hidden. It’s also why the WayBack Machine has been blocked or threatened at various times in China, Russia, India, and other jurisdictions where free expression protections are weak.

It’s not just the open web that is disappearing. A recent report on the problem of “Vanishing Culture” highlights how this challenge pervades modern cultural works. Everything from 90s shareware video games to the entirety of the MTV News Archive are at risk.  As Jordan Mechner, a contributor to the report explains, “historical oblivion is the default, not the exception” to the human record. As the report explains, it’s not just disappearing content that poses a problem: libraries and consumers must grapple with electronic content that can be remotely changed by publishers or others as well. As just one example among many, in just the last few years we’ve seen surreptitious modifications to ebooks on readers’ devices—some changing important aspects of the plot—for works by authors such as RL Stine, Roald Dahl, and Agatha Christie.  

The case for preservation as a foundational necessity to combat censorship is straightforward. “There is no political power without power over the archive,” Jacques Derrida reminds us. Without access to a stable, high-fidelity copy of the historical record, there can be no meaningful reflection on what went right or wrong, or holding to account those in power who may oppose an accurate representation of their past. 

What sometimes goes unnoticed is that, without fair use, a large portion of these preservation efforts would be illegal. 

In a world where century-long copyright protection applies automatically to any human expression with even a “modicum of creativity,” virtually everything created in the last century is subject to copyright. This is a problem for digital works because practically any preservation effort involves making copies—often lots of them—to ensure the integrity of the content. Making those copies means that archivists must rely on fair use to preserve these works and make them available in meaningful ways to researchers and others. 

The upshot is that every time the Internet Archive archives a website, it’s an act of faith in fair use. Is that faith well-founded? 

I think so. But the answer is complicated. 

For preservation efforts like those of the Internet Archive, fair use is a foundation, but not an unshakable one. Two recent cases highlight the risk, one against its book lending program and the other objecting to its “Great 78” record project. Both take issue with how the Archive provides access to preserved digital copies in its collections. While not directly attacking the preservation of those materials, the suits effectively jeopardize their effective use. As archivists have long lamented, “preservation without access is pointless.” 

Beyond direct challenges to fair use, archives are threatened by spurious takedown demands, content removal requests, and legal challenges. Organizations like the Internet Archive have fought back, but many institutions simply cannot afford to, leading to a chilling effect where preservation efforts are scaled back or abandoned altogether.

Compounding this uncertainty is the growing use of technological protection measures (TPMs) and digital rights management (DRM) systems that restrict access to digital works. Under the Digital Millennium Copyright Act (DMCA), circumventing these restrictions is illegal—even for lawful purposes like preservation or research. This creates a paradox where a researcher or archivist may have a clear fair use justification for accessing and copying a work, but breaking an encryption lock to do so could expose them to legal liability.

Additionally, the rise of contractual overrides—such as restrictive licensing agreements on digital platforms—threatens to sideline fair use entirely. Many modern works, including e-books, streaming media, and even scholarly databases, are governed by terms of service that explicitly prohibit copying or analysis, even for noncommercial research. These contracts often supersede fair use rights, leaving archivists and researchers with no legal recourse.

Still, there are reasons for optimism. Courts have generally ruled favorably when fair use is invoked for transformative purposes, such as digitization for research, searchability, and access for disabled users. Landmark decisions, like those in Authors Guild v. Google and Authors Guild v. HathiTrust, upheld fair use in the context of large-scale digital libraries and text-mining projects. These cases suggest that courts recognize the essential role fair use plays in making knowledge accessible, particularly in an era of vast digital information.

Fair Use and the Freedom to Extract 

One of copyright’s other traditional First Amendment protections is that the copyright monopoly does not extend to facts or ideas. Fair use is critical in giving life to this protection by ensuring that facts and ideas remain accessible, providing a “freedom to extract” (a term I borrow from law professor Molly Van Houweling’s recent scholarship) even when they are embedded within copyrighted works. 

Copyright does not and cannot grant exclusive control over facts, but in practice, extracting those facts often requires using the work in ways that implicate the rightsholder’s copyright. Whether journalists referencing past reporting, historians identifying truths in archival materials, or researchers analyzing a vast corpus of written works, fair use provides the necessary legal space to operate without running afoul of copyright protections for rightsholders. 

The need is more urgent than ever given the sheer scale of the modern historical record.   In many cases, relying on individual researchers to sift through the record and extract important facts is impractical, if not impossible. Automated tools and processes, including AI and text data mining tools, are now indispensable for processing, retrieving, and analyzing facts from large amounts of massive amounts of text, images, and audio. From uncovering patterns in historical archives to verifying political statements against prior records, these tools serve as extensions of human analysis, making the extraction of factual information possible at an unprecedented scale. However, these technologies depend on fair use. If every instance of text or data mining required explicit permission from rights holders—who may have economic or political incentives to deny access—the ability to conduct meaningful research and discovery would be crippled.

For example, consider a researcher studying the roots of the opioid crisis, trying to mine the 4 million documents in the Opioid Industry Documents Archive—many of them legal materials, internal company communications, and regulatory filings. These documents, made public through litigation, provide critical insights into how pharmaceutical companies marketed opioids, downplayed their risks, and shaped public policy. But making sense of such a massive trove of records is impossible without computational tools that can analyze trends, track key players, and surface hidden patterns. 

Without fair use, researchers could face legal roadblocks to applying text and data mining techniques to extract the facts buried within these documents. If copyright law were used to restrict or complicate access to these records, it would not only hamper academic research but also shield corporate and governmental actors from exposure and accountability.

Conclusion

As information continues to proliferate across digital media, fair use remains one of the few safeguards ensuring that historical records and cultural artifacts do not become permanently locked away behind copyright barriers. It allows the past to be examined, challenged, and understood. If we allow excessive copyright restrictions to limit the ability to extract and analyze our shared past and culture, we risk not only stifling innovation but also eroding our collective ability to engage with history and truth.

Fair Use Week

This is my contribution to Fair Use Week. The read the other excellent posts from this week, check out Kyle Courtney’s Harvard Library Fair Use Week blog here.