Quarterly Journal Volume 52, Issue 1 April 2024

To bring a trade secret misappropriation claim in the International Trade Commission (“ITC”), complainants must prove that the alleged misappropriation has the tendency or effect to substantially injure a domestic industry. The ITC’s “substantial injury” requirement for trade secret claims is burdensome to prove and expensive to litigate. Congress removed this requirement for statutory intellectual property in 1988. Trade secrets, however, were not statutory in 1988 and, therefore, still to this day have the “substantial injury” requirement. Because trade secret law is now statutory due to the Defend Trade Secrets Act of 2016, Congress should amend Section 337 to give trade secrets its own provision and, therefore, remove the difficult-to-prove and expensive-to-litigate “substantial injury” requirement.

This Note explores how the United States’ implementation of a subjective fair use defense to copyright infringement has led to disparity between courts in their evaluation of copyright infringement suits, confusion about the standards implemented and subjective factors evaluated when a fair use defense is invoked, and inequity in outcomes for parties with unequal bargaining power. This Note argues that the fair use defense’s four subjective factors should be reevaluated and replaced with a series of concrete, objective standards modeled after the European Union’s Information Society Directive. Section II.A examines the origins of fair use as a defense to copyright infringement. Section II.B lays out the current U.S. law on invoking the fair use defense. Section II.C argues that the fair use defense is too open-ended and too context-sensitive as it stands in the United States today, looks specifically at the first fair use factor set forth by Section 107 of the Copyright Act of 1976, and explains why it is the most subjective and therefore, the most problematic. Section II.D looks to European Union copyright law for a solution to the problems set forth in the former sections. Finally, Part III proposes specific amendments to Section 107 of the Copyright Act, eliminating the subjectivity of the fair use defense, reshaping fair use to specifically target its original purpose, and tailoring the new Section 107 towards equally protecting both established artists and unestablished artists, who lack a voice and significant bargaining power in the art world.