The title of this symposium is the question: "Fair Use: "Incredibly Shrinking" or Extraordinarily Expanding?" I'd argue that the answer to the question is "no." Fair use isn't doing either. The size of the fair use footprint has stayed remarkably constant over the past 30 or even 50 years. What has expanded, extraordinarily, is the size of rights granted by the copyright law. It may seem as if fair use is either expanding or shrinking, because the greater reach of copyright has made a bunch of uses potentially fair that weren't even potentially infringing 50 years ago. In order to protect those uses under the fair use umbrella we need to reach out, and grab it, and pull it over them. But we aren't stretching fair use when we do that; we're just moving it. That makes it look to some people as if fair use is expanding to cover new uses and to others as if fair use is shrinking because it no longer covers uses that used to be deemed fair. The culprit, then, is that we seem willing to tolerate a huge expansion in the scope of copyright rights - most of that expansion, by the way, has been nonstatutory - but unwilling to countenance a similar expansion in the scope of fair use.
Litman, Jessica D. "Billowing White Goo (Symposium: Fair Use: 'Incredibly Shrinking' or Extraordinarily Expanding?)." Colum. J. L. & Arts 31, no. 4 (2008): 587-601.