Journal of Intellectual Property Law, Vol. 5, No. 2 (Spring 1998), pp. 431-452


The fair use doctrine has become so important in American copyright law that it is somewhat surprising to learn that the case credited with creating it, Folsom v. Marsh, was so poorly reasoned that it may be entitled to first place in the category of bad copyright decisions. The case was a bill in equity for copyright piracy, the style of which comes from plaintiff, Folsom, Wells and Thurston, printers and publishers, and defendants, Marsh, Capen and Lyon, booksellers.

If one of the characteristics of a bad legal decision is that it gives rise to a myth as to what the court in fact ruled, Folsom is at the top of the list. The myth is twofold. The first myth is that Folsom created fair use, when in fact it merely redefined infringement. The second myth is that Folsom diminished, and therefore fair use diminishes, the rights of the copyright owner. In fact, the case enlarged those rights beyond what arguably Congress could do in light of the limitations on its copyright power [FN3] and, indeed, fair use today continues to be an engine for expanding the copyright monopoly.

This is a large charge in light of the modern culture to the contrary, but analysis bears it out, and one begins the analysis with Folsom. The major factor in understanding Folsom is the scope of copyright when the case was decided, because whether fair use enlarged or diminished the rights of the copyright owner depends upon what those rights were before the fair use doctrine developed.

In 1840, the rights of copyright were available only for a book as it was published; another author could abridge or translate the book without infringing the copyright. Story, aware of both doctrines, acknowledged the abridgment doctrine in Folsom, and held that the defendant's work was not an abridgment. He then proceeded to redefine infringement, which in his hands became any copying, duplicative or imitative, in whole or in part of the copyrighted work. This redefinition of infringement enlarged the copyright monopoly and became the basis for what was to become fair use.

There would be, of course, an anomaly in being concerned with a poorly reasoned judicial decision over a hundred years old, except that its impact continues today in unsuspected ways. Prior to Folsom, copyright could best be understood as a subset of public domain law in the form of a limited statutory monopoly; Folsom laid the groundwork for transforming copyright into a subset of property law as a natural law right. Since the law of which copyright is a subset is the source of copyright rules, the choice has important consequences. Whether copyright is a statutory monopoly or a proprietary right is significant for both copyright owners and users of copyrighted material. The former concept provides greater, the latter less, leeway for use by others, and this issue has assumed a new importance in light of communications technology by reason of which copyright holders may be able to control all access to copyrighted material, for example, in a computer database. Before proceeding with the nature of copyright, however, it will be useful to discuss the Folsom decision itself since it is better known for its supposed holding than its content.