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 have applied these provisions strictly even where the resulting award of damages seems far disproportionate to any plausible claim of actual harm by the plaintiff. The conjunction of strict liability and heavy penalties makes it all too easy to imagine cases where literal application of the statute would yield an unjust result, requiring an award of damages far disproportionate to the defendant’s actual culpability.

The courts, however, have played an important role here—aiming, with at least some success, to sand the rough edges off of copyright’s strict-liability, sanctions-heavy regime. They have done so by what might at first glance seem to be sheer defiance of Congress, refusing to find liability even in circumstances where the statute appears to require it. Nowhere has this been more clear than in the development of copyright’s doctrine of fair use.

The Supreme Court has characterized fair use as a limitation on copyright holders’ exclusive rights when “rigid application of the copyright statute. . . would stifle the very creativity which that law is designed to foster.” Although the fair use doctrine is now recognized by statute, fair use received legislative recognition only after more than a century of growth as a judge-made copyright exception. The modern fair use doctrine is commonly traced to Justice Story’s 1841 opinion in Folsom v. Marsh. The case was brought by the holder of the copyright in a twelve-volume biography of President Washington that consisted predominantly of edited reproductions of Washington’s own presidential papers. The defendant copied more than three hundred pages of Washington’s records from the plaintiff’s books in order to produce his