Xiyin Tang has self-archived "Defining the Relevant Market in Fair Use Determinations."
Here's an excerpt:
Whereas current copyright analysis and scholarship focuses overwhelmingly on the infringer's conduct, this Article argues, instead, that a copyright holder’s own actions should define the scope of the market for the work. In what I term a copyright owner’s "negative" uses of her own work—such as engaging in holdup strategies that make fair market value impossible to determine, failing to update Copyright Office records, refusing to mitigate damages, or using a copyright for litigation value rather than copyright value—the copyright owner herself has much to tell us about whether she is likely to suffer market harm.
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