Among the toughest and most common questions faced by intellectual property lawyers advising clients outside of litigation is: "Can I use this?" Clients who want to make use of someone else's work generally know there are laws about that, but they also know there are exceptions. So they ask: "How much of the work can I use?" "What purposes can I use the work for?" "Does this thing I want to do even 'count'?"

Unfortunately, there are rarely easy answers to these questions, because they turn on one of the most complex and fact-specific inquiries in all of American copyright law—the fair use exception. Any use of copyrighted material that is found to be "fair use" under the Copyright Law is not an infringement, but fair use can be very hard to define and the cases on it have not always been models of clarity. Thus, the conservative advice to clients is that if a business model requires a finding of large scale fair use to survive, it may well be heading the way of Napster.

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