Many circumstances fair use should separate the idea that the copyright owner should be compensated for a use from the idea that the copyright owner should be able to control that use. The licensing-market cases provide a perfect vehicle for dividing rights but if a use is considered unfair because the copyright owner could have gotten paid to permit that use, the argument may or may not justify compensating the copyright owner for the loss, but it does not justify giving the copyright owner control over the defendant's use. Here, Lemley explains the development of the licensing-market rationale, critiques of that rationale, and its significance for the scope of the fair use doctrine.
Mark A. Lemley,
Should a Licensing Market Require Licensing?,
70 Law and Contemporary Problems
Available at: http://scholarship.law.duke.edu/lcp/vol70/iss2/11