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[*] Assistant Professor, University of Texas School of Law. I would like to thank the following persons for their helpful comments and suggestions regarding this Article: Peter Brown, Willie Forbath, Mark Gergen, Wendy Gordon, Marci Hamilton, Doug Laycock, Brian Leiter, Mark Lemley, Jessica Litman, Ronald Mann, John Robertson, Charles Silver, Eric Talley, and the participants of the University of Texas School of Law Faculty Colloquium and Junior Faculty Roundtable at which I presented earlier drafts of this Article. My thanks also to Brett Swanson for his research assistance.
[1] See NII Copyright Protection Act of 1995: Hearings on H.R. 2441 Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary, 104th Cong. (1996) (regarding proposed legislation to amend Copyright Act to make clear that right of public distribution applies to computer network transmissions and to impose criminal penalties on circumvention of encrypted protection of copyrighted works).
[2] See MAI Sys. v. Peak Computer, 991 F.2d 511, 519 (9th Cir. 1993) (holding that copy is made when work is booted into RAM for longer than very brief period); Religious Tech. Ctr. v. Netcom On-Line Communications Servs., Inc., 907 F. Supp. 1361 (N.D. Cal. 1995) (holding that electronic bulletin board operator and Internet access provider are not directly liable, but under certain circumstances may be contributorily liable, in connection with Usenet subscriber's posting of infringing message to Usenet newsgroup); Sega Enters. v. Maphia, 857 F. Supp. 679 (N.D. Cal. 1994) (holding electronic bulletin board system operator directly liable for users' uploading and downloading of infringing copies); Playboy Enters. v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993) (same).
[3] See, e.g., Niva Elkin-Koren, Copyright Law and Social Dialogue on the Information Superhighway: The Case Against Copyright Liability of Bulletin Board Operators, 13 CARDOZO ARTS & ENT. L.J. 346 (1995); Jane C. Ginsburg, Putting Cars on the "Information Superhighway": Authors, Exploiters, and Copyright in Cyberspace, 95 COLUM. L. REV. 1466 (1995); I. Trotter Hardy, Property (and Copyright) in Cyberspace, 1996 U. CHI. LEGAL F. (forthcoming Jan. 1997); Jessica Litman, The Exclusive Right to Read, 13 CARDOZO ARTS & ENT. L.J. 29 (1994); Raymond T. Nimmer & Patricia Ann Krauthaus, Copyright on the Information Superhighway: Requiem for a Middleweight, 6 STAN. L. & POL'Y REV. 25 (1994); Pamela Samuelson, Digital Media and the Changing Face of Intellectual Property Law, 16 RUTGERS COMPUTER & TECH. L.J. 323 (1990); Diane Leenheer Zimmerman, Copyright in Cyberspace: Don't Throw Out the Public Interest with the Bath Water, 1994 ANN. SURV. AM. L. 403.
[4] See generally discussion on cni-copyright (visited Oct. 18, 1996), and cyberia-1 (visited Oct. 18, 1996).
[5] See, e.g., WORLD INTELLECTUAL PROPERTY ASS'N, WIPO WORLDWIDE SYMPOSIUM ON THE IMPACT OF DIGITAL TECHNOLOGY ON COPYRIGHT AND NEIGHBORING RIGHTS (1993); European Comm'n, Green Paper on Copyright and Related Rights in the Information Society (last modified Sept. 8, 1995).
[6] See, e.g., INFORMATION INFRASTRUCTURE TASK FORCE, INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE; THE REPORT OF THE WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS 137-38 (last modified Sept. 1995)[hereinafter NII WHITE PAPER]; see also Wendy J. Gordon, On Owning Information: Intellectual Property and the Restitutionary Impulse, 78 VA. L. REV. 149, 156-57 (1992) (citing perception that greater intellectual property protection will enhance national prosperity as central factor in fueling dramatic expansion in scope of intellectual property over last two decades); Robert W. Kastenmeier & David Beier, International Trade and Intellectual Property: Promise, Risks, and Reality, 22 VAND. J. TRANSNAT'L L. 285 (1989) (detailing growing importance of intellectual property to U.S. balance of trade and ultimately successful efforts by U.S. business leaders to include enforceable requirements for intellectual property protection within General Agreement on Tariffs and Trade).
[7] I will refer broadly to this selective combination of neoclassical and new institutional economic property theory as "neoclassicism," even though self-proclaimed "new institutional" theorists generally distinguish themselves from, and, indeed, are critical of, what they define as neoclassical economic theory. See infra text accompanying notes 118-21. Similarly, I will refer broadly to copyright scholars who have expounded the neoclassicist approach as "neoclassicists," even though many have taken other approaches as well. See infra note 22.
[8] The phrase is from Wendy J. Gordon, Assertive Modesty: An Economics of Intangibles, 94 COLUM. L. REV. 2579, 2579 n.1 (1994) (stating that intellectual property law is fundamentally "a mode of converting mental labor into a `vendible commodity'" (citation omitted)). See also Frank H. Easterbrook, Intellectual Property is Still Property, 13 HARV. J.L. & PUB. POL'Y 108, 118 (1990) (maintaining that "[e]xcept in the rarest case, we should treat intellectual property and physical property identically in the law"). Professor Gordon presented the neoclassicist approach in an early article on copyright's fair use defense. See Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and its Predecessors, 82 COLUM. L. REV. 1600, 1605 (1982) [hereinafter Gordon, Fair Use]. To a limited extent in that article, and to a far greater extent in her subsequent work, she has argued that creative expression may serve important nonmonetizable interests and that copyright owners should not be entitled to capture all social value derived from such expression. See Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 YALE L.J. 1533 (1993) [hereinafter Gordon, Self-Expression] (setting forth critique of copyright expansion based on Lockean natural rights theory); infra text accompanying notes 228-33 (questioning efficacy of Professor Gordon's attempt, in her article on fair use, to limit expansionist tendency of her early neoclassicist position).
[9] See Litman, supra note 3; Zimmerman, supra note 3; Pamela Samuelson, The Copyright Grab, WIRED, Jan. 1996, at 134; see also NII Copyright Protection Act of 1995: Hearings on H.R. 2441 Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary, 104th Cong. (1996) (statement of Members of Digital Future Coalition) (Feb. 15, 1996) (opposing enactment of NII White Paper recommendations into law). Indeed, many critics have argued cogently that, even without further expansion, copyright has already become an instrument of private censorship, of the elevation of property rights over public access to the expressive foundations for challenging established social and cultural norms. See, e.g., James Boyle, A Theory of Law and Information: Copyright, Spleens, Blackmail, and Insider Trading, 80 CAL. L. REV. 1413, 1467-69 (1992); Gordon, Self-Expression, supra note 8; Peter Jaszi, On the Author Effect: Contemporary Copyright and Collective Creativity, 10 CARDOZO ARTS & ENT. L.J. 293, 295 (1992); David Lange, At Play in the Fields of the Word: Copyright and the Construction of Authorship in the Post-Literate Millennium, LAW & CONTEMP. PROBS., Spring 1992, at 139; Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990); Diane Leenheer Zimmerman, Information As Speech, Information As Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 WM. & MARY L. REV. 665 (1992); Brief of Amici Curiae Concerned Law Professors in Support of Petitioners at 18, Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (No. 92-1292) (warning of copyright owners' propensity to seek "private censorship through copyright" and urging Court to establish First Amendment defense for parody).
[10] See infra text accompanying notes 255-57.
[11] See infra text accompanying notes 258-62.
[12] See Marci A. Hamilton, The TRIPs Agreement: Imperialistic, Outdated, and Overprotective, 29 VAND. J. TRANSNAT'L L. 613, 625-27 (1996) (criticizing "hackers'" view that copyright is outdated impediment to "truth and exploration").
[13] See infra text accompanying notes 263-68.
[14] See infra text accompanying notes 269-70, 399-401.
[15] See Ginsburg, supra note 3, at 1499 (coining term "sustained works of authorship").
[16] U.S. CONST. art. I, § 8, cl. 8.
[17] In calling for the enactment of the first federal copyright statute in 1790, a Senate committee underscored the central importance for the fledgling democracy of authors' contributions to the store of knowledge, resolving that "`[l]iterature and [s]cience are essential to the preservation of a free Constitution.'" BRUCE W. BUGBEE, GENESIS OF AMERICAN PATENT AND COPYRIGHT LAW 137 (1967) (quoting U.S. Senate Journal, 1st Cong. 8-10; U.S. Annals of Congress, 1st. Cong. 935-36 (972 in some copies)). President Washington used similar language in his address to Congress in support of the statute. See infra text accompanying note 339.
[18] See PAUL GOLDSTEIN, 1 COPYRIGHT § 2.2.1, at 2:10 (2d ed. 1996); see also Barbara Ringer, Two Hundred Years of American Copyright Law, in AMERICAN BAR ASS'N, TWO HUNDRED YEARS OF ENGLISH AND AMERICAN PATENT, TRADEMARK AND COPYRIGHT LAW 117, 118 (1977) ("We know, empirically, that strong copyright systems are characteristic of relatively free societies.").
[19] Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985) (holding that unauthorized publishing of copyright protected memoirs was violation of copyright); see also Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105, 1135 (1990) ("Although copyright often results in suppression of speech, its underlying objectives parallel those of the first amendment.").
[20] See Kathleen M. Sullivan, Free Speech and Unfree Markets, 42 UCLA L. REV. 949, 963 (1995) (rejecting market metaphor in freedom of speech jurisprudence and noting that "[s]peech is an interaction arguably akin not to sales but to government").
[21] For a discussion of anticipated upheavals in traditional copyright markets as a result of digital network distribution, see PAUL GOLDSTEIN, COPYRIGHT'S HIGHWAY: FROM GUTENBERG TO THE CELESTIAL JUKEBOX 197-236 (1994); Eugene Volokh, Cheap Speech and What It Will Do, 104 YALE L.J. 1805 (1995); John Perry Barlow, The Framework for Economy of Ideas: Rethinking Patents and Copyrights in the Digital Age, WIRED, Mar. 1994, at 83; Esther Dyson, Intellectual Value, WIRED, July 1995, at 136. See also Doreen Carvajal, Book Publishers Worry About Threat of Internet, N.Y. TIMES, Mar. 18, 1996, at A1. For a more conservative view of the inroads that digitization will make in markets for hard copy texts, see WALT CRAWFORD & MICHAEL GORMAN, FUTURE LIBRARIES: DREAMS, MADNESS & REALITY (1995).
[22] See infra text accompanying notes 188-91. In addition, these scholars have sometimes presented views of copyright that, at least in part, fall outside of the neoclassicist approach. See, e.g., Paul Goldstein, Copyright, LAW & CONTEMP. PROBS., Spring 1992, at 79, 80, 86 (emphasizing copyright's support for author's creative autonomy); Gordon, Self-Expression, supra note 8 (presenting natural rights approach to copyright that emphasizes need to limit copyright owner rights to far greater extent than neoclassical economic analysis); Robert P. Merges, Intellectual Property and the Costs of Commercial Exchange: A Review Essay, 93 MICH. L. REV. 1570, 1613 (1995) (favoring preemption of industry-wide standard contracts that effect "wholesale subversion of an important federal policy").
[23] For a powerful argument that the rhetoric of law and economics tends to marginalize the values required for human flourishing generally, see MARGARET JANE RADIN, CONTESTED COMMODITIES 79-94 (1996). See also SUSAN ROSE-ACKERMAN, RETHINKING THE PROGRESSIVE AGENDA: THE REFORM OF THE AMERICAN REGULATORY STATE 22-23 (1992) (noting neoclassical tendency to focus on individual transactions and neglect broader social policy); Robert W. Gordon, Unfreezing Legal Reality: Critical Approaches to Law, 15 FLA. ST. U. L. REV. 195 (1987) (pointing out that free market choice model of contract law fails to account for true nature of individual relationships and autonomous choices).
[24] For example, many persons may read a book, listen to a radio program, or view a painting without preventing others from doing the same or in any way diminishing the value of the work. In some instances, in fact, given network effects, the more people that enjoy a work, the greater may be its value for each user. See Michael L. Katz & Carl Shapiro, Systems Competition and Network Effects, J. ECON. PERSP., Spring 1994, at 93. However, this might not always be the case with every type of creative work. For example, in determining basic prices for various uses of their photographs, stock photo agencies typically give considerable weight to the idea that much of a photograph's value lies in its "freshness"; the more people that view a photograph, the more its "freshness" is believed to have been consumed. See Timestream, Inc., Licensing Still Images: Some Basic Information for Multimedia Producers, at app. C (last modified 1994).
[25] See Harold Demsetz, The Private Production of Public Goods, 13 J.L. & ECON. 293, 295 (1970).
[26] Such copying competitors are "free riders" in the sense that they do not share in the copyright owner's costs of creation, initial production, and marketing. Since competitors generally would copy only those works that have proven to be a success, they also "free ride" on the copyright owner's efforts to select which works to produce.
[27] See William W. Fisher III, Reconstructing the Fair Use Doctrine, 101 HARV. L. REV. 1661, 1700 (1988). In markets in which copyright owners enjoy lead time advantages or are able to distribute qualitatively superior copies, they might be able to obtain some financial return despite unhindered copying. But digital technology has the potential to erase these advantages. It enables copiers, quickly and inexpensively, to make and disseminate perfect quality reproductions. In addition, as consumer copying becomes easier, cheaper, and of higher quality, as is the case with digital technology, the authors' ability to recover fixed costs may be threatened by nonpurchasing consumers no less than by free riding competitors. As a result, copyright protection is all the more important in the digital environment, except to the extent that copyright owners can (and, as a matter of public policy, should) rely on technical means to prevent unauthorized copying or are able to recover their investment from the provision of peripheral services rather than the sale of expressive content. See infra text accompanying notes 353-56.
[28] My reference here and elsewhere to "publishers" is meant to connote any person or entity that engages in selecting creative expression and making it available to the public. Publishers would thus include, in addition to print and music publishers: sound recording, multimedia, film, and television producers; digital content providers; art gallery owners; and others.
[29] Access might be in the form of the purchase or rental of a hard copy (book or CD), electronic access (TV, radio, or electronic database), or onsite public performance or display (movie or museum).
[30] The size of this potential monopoly surcharge will be a function of the extent to which other works might substitute for the work in question and the extent to which the copyright owner can engage in price discrimination. See Glynn S. Lunney, Jr., Reexamining Copyright's Incentives-Access Paradigm, 49 VAND. L. REV. 483, 520-21 (1996); Stewart E. Sterk, Rhetoric and Reality in Copyright Law, 94 MICH. L. REV. 1197, 1205 (1996). Digital technology significantly enhances copyright owner ability to engage in price discrimination. First, it enables users to be charged for each discrete use when the use takes place. As a result, the copyright owner may determine a differential use fee on a daily or hourly basis for each type of use. Second, digital technology accords content providers with an unprecedented ability to build, sell, and use individual consumer profiles. Once consumer preferences are identified, users could be charged a greater amount for those uses and types of works that they most value. See GOLDSTEIN, supra note 21, at 8, 178-79, 202; see also A. Michael Froomkin, Flood Control on the Information Ocean: Living With Anonymity, Digital Cash, and Distributed Databases, 15 J.L. & COM. 395, 450-88 (1996) (discussing digital payment systems and consumer profiles).
[31] In theory, perfect price discrimination would make it possible for the creator to produce both the work and the optimal number of copies. Of course, this would also enable the producer to capture all of the consumer surplus. See Demsetz, supra note 25, at 301-04 (discussing possibilities for price discrimination in sale of public goods). Of course, perfect price discrimination would also bring copyright owners a maximum share of consumer surplus since they could charge each consumer the full amount she would be willing to pay for access to the work.
[32] Defined in terms of traditional welfare economics, deadweight loss consists of two components: (1) the extent of the lost satisfaction experienced by each consumer who is unable to purchase the product because of its monopolistic price; and (2) the number of consumers who experience such loss. See Lunney, supra note 30, at 564. The copyright monopoly also enables the copyright owner to capture a large share of the consumer surplus with respect to a work, especially when the owner can engage in discriminatory pricing. However, economists generally see this as solely a matter of distribution, without any appreciable effect on allocative inefficiency. See Fisher, supra note 27, at 1702. Richard Posner has noted that the social costs of monopoly pricing for intellectual property are essentially no different than the indispensable demarcation and enforcement costs of using a property rights system to allocate any resource, and has maintained that so long as the benefits of establishing the property system exceed its cost, it will be and should be established. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 35, 39-40 (4th ed. 1992).
[33] Expansion that has, on the whole, been more beneficial than troublesome includes the extension of copyright protection to new forms of expression and new means of dissemination. The first federal copyright statute, the Copyright Act of 1790, extended protection only to books, maps, and charts. See Act of May 31, 1790, ch. 15, § 1, 1 Stat. 124, 124. However, copyright law now provides incentives for the creation and dissemination of a broad range of cultural expression, including works of visual art, music, architecture, choreography and others, like sound recordings, photographs, and film, that did not exist in 1790. An 1802 amendment to the copyright law added engravings and prints. See Act of Apr. 29, 1802, ch. 36, § 2, 2 Stat. 171. The 1831 copyright law revision added musical compositions. See Act of Feb. 3, 1831, ch. 16, § 1, 4 Stat. 436. An 1865 amendment added photographs. See Act of Mar. 3, 1865, ch. 126, § 1, 13 Stat. 540. The Copyright Act of 1870 added paintings, drawings and statues. See Act of July 8, 1870, ch. 230, § 86, 16 Stat. 198, 212. The Copyright Act of 1976 broadly protects all "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. § 102(a) (1994). As originally enacted, the Act also enumerated seven categories of works of authorship, including (1) literary works, (2) musical works, (3) dramatic works, (4) pantomimes and choreographic works, (5) pictorial, graphic, and sculptural works, (6) motion pictures and other audiovisual works, and (7) sound recordings. In 1990, an eighth category, architectural works, was added, pursuant to the Architectural Works Copyright Protection Act, tit. 7, § 701, 104 Stat. 5133 (1990) (codified at 17 U.S.C. § 101 note). Today's copyright law also recognizes important means of disseminating expression other than simply printing and distributing copies. These include public performance and public display. See 17 U.S.C. § 106(4)-(5) (1994). They also encompass new technological means of dissemination, including cinema, phonorecords, broadcast, and electronic reprography. The showing of films at the cinema and the broadcast of fixed or simultaneously recorded works on television or radio constitute a public performance of such works within the meaning of 17 U.S.C. § 106(4). Under section 106(1) of the Copyright Act, the right to make copies includes the reproduction of works in phonorecords and technological means of reproduction such as electronic reprography. For an extensive discussion of the application of copyright to new technological uses of works of authorship, see NATIONAL COMM'N ON NEW TECHNOLOGICAL USES OF COPYRIGHTED WORKS, FINAL REPORT 82 (1979) [hereinafter CONTU]. Copyright's extension into these areas underwrites a rich and varied system of culture and dialogue. In today's multifarious market, to limit copyright to its original parameters would be to consign it to oblivion.
[34] See, e.g., Religious Tech. Ctr. v. Netcom On-Line Communication Servs., 907 F. Supp. 1361 (N.D. Cal. 1995).
[35] Salinger was successful. See Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir. 1987) (holding that biographer's quotations from Salinger's unpublished letters did not constitute fair use). Hughes was not. See Rosemont Enters. v. Random House, Inc., 366 F.2d 303 (2d Cir. 1966) (vacating preliminary injunction restraining distribution of biography of Hughes that incorporated material from series of magazine articles, copyright in which had been acquired by Hughes's holding company).
[36] See Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 753 (9th Cir. 1978) (quoting Note, Parody, Copyrights and the First Amendment, 10 U.S.F. L. REV. 564, 571 (1976)).
[37] See Belmore v. City Pages Inc., 34 U.S.P.Q.2d (BNA) 1295 (D. Minn. 1995).
[38] The metaphor of copyright as a "tax" has a long and established pedigree, extending back to Thomas Macaulay's pronouncement, on the floor of Parliament in 1841 in opposition to a bill to lengthen the copyright term, that copyright imposes a "tax on readers for the bounty of writers." THOMAS MACAULAY, SPEECHES ON POLITICS AND LITERATURE 177 (New York, E.P. Dutton & Co. 1924) (1841).
[39] The extent to which copyright may pose significant barriers to reader, viewer, or listener access will depend on a number of factors, including the degree of copyright owner market power for any given consumer use of a particular work (which is itself largely a factor of the substitutability of alternative uses and works), copyright owner ability and willingness to engage in price discrimination based on consumer ability to pay, the percentage of total retail cost that is attributable to copyright, and the availability of copyrighted material that is available without any direct consumer payment through advertiser-supported broadcasting, public libraries, and other sources. Much theoretic and empirical work needs to be done to determine more precisely how much of a "tax" copyright really imposes on consumers of various types of works and how much of a barrier to access such a "tax" represents.
[40] See NII Copyright Protection Act of 1995: Hearings on H.R. 2441 Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary, 104th Cong. (1996) (statement of American Association of Law Libraries, American Library Association, Association of Research Libraries, Medical Library Association, Special Libraries Association) (expressing concern that copyright owner ability to impose universal user charges "will take us a very long way towards becoming a nation of information haves and information have-nots") (last modified Feb. 8, 1996); Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace, 14 CARDOZO ARTS & ENT. L.J. 215, 264-67 (1996) (maintaining that digital distribution and discontinuation of libraries' provision of free access to information may exacerbate socioeconomic inequality); Zimmerman, supra note 3, at 410 (discussing possible chilling effect on students, scholars, and library users of having to pay for each use).
[41] For a comprehensive study of artistic influence, see G™RAN HERMERN, INFLUENCE IN ART AND LITERATURE (1975). For a more succinct, but highly useful discussion, see RICHARD A. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION 343-51 (1988).
[42] Especially given copyright owner ability to demand supracompetitive license fees, a market power enhanced by according owners broad exclusive rights, would-be transformative authors often will be unable or unwilling to pay the copyright owner's price. See Lunney, supra note 30, at 521-22 (discussing enhanced market power from broad copyright protection). In some cases, due in part to persistent market imperfections, secondary authors will be unable to recover their costs from consumers of their work. In others, they might possibly be able to recover their license fee, but they will be unable or unwilling to bear the substantial risk of failing to do so. In still others subsequent authors might, in theory, be willing to pay the copyright owner's price, but not the additional costs of negotiating and obtaining a license. For a further discussion of market impediments to transformative use licenses, see Mark A. Lemley, The Economics of Improvement in Intellectual Property Law, 75 TEX. L. REV. (forthcoming May 1997). Paul Goldstein contends that "transaction costs will commonly hobble the making of nontransformative copies . . . to a far greater degree than they will transformative copies." GOLDSTEIN, supra note 18, § 10.2.2, at 10:43. Even if once true, this is often no longer the case, and certainly will not be so in the digital network environment. With the emergence of collective photocopy licensing, digital tracking, and automatic electronic payment, transaction costs for simple, nontransformative copying will drop to next to nothing. But even in a digital environment, transformative uses will often require individual assessment and negotiation, since copyright owners will want to ensure that the particular transformative use that is proposed will not interfere with their development plans or run contrary to their views.
[43] Even from a completely atomistic, self-interested point of view, individuals benefit from democracy, because democratic government is generally a better guarantee of individual autonomy and freedom from oppression than are other forms of government. See Stephen A. Gardbaum, Broadcasting, Democracy, and the Market, 82 GEO. L.J. 373, 387-88 (1993) (arguing that democratic government is necessary, although not sufficient, condition for individual autonomy).
[44] In economic terms, transformative expression can be said to yield social benefits that remain external to the decisions of market actors. More strongly, one could argue that transformative expression is what Charles Taylor has called an "irreducibly social good," a good whose value cannot be measured or described in terms of the metric of individual preferences, but rather derives from shared meanings and collective decisionmaking. See Charles Taylor, Irreducibly Social Goods, in RATIONALITY, INDIVIDUALISM AND PUBLIC POLICY 45 (Geoffrey Brennan & Cliff Walsh eds., 1990). For the purposes of my argument, it makes no difference whether the benefits of transformative expression (or, for that matter, of copyright as a whole) are seen as irreducibly social goods or intractable externalities. The point in either case is that market transactions in a broad, proprietary copyright cannot be relied upon to further or reflect the public interest in expressive diversity, whether that public interest is seen as an organic whole or as an aggregation of individual preferences.
[45] A fourth troublesome area of copyright expansion, but one that does not directly involve cultural expression, is the extension of copyright protection to computer programs, which primarily serves a utilitarian function rather than directly communicating an idea to a reader, listener, or observer. (Of course, computer programs may be used as tools for communication, much like pens, paint brushes, or motion picture projectors. Their immediate purpose, however, is to direct the functions of a computer, not to communicate to humans.) Computer programs are ostensibly protected as literary works, but courts have effectively accorded them a quasi-sui generis protection that better comports with their functional nature. See Pamela Samuelson et al., A Manifesto Concerning the Legal Protection of Computer Programs, 94 COLUM. L. REV. 2308, 2359-61 (1994). The extension of copyright protection to computer programs, first by Congress and then, at the insistence of the United States, in the Agreement on Trade Related Aspects of Intellectual Property, is an anomalous case, arising from the strong perceived need for protection and the ready availability of copyright in domestic and international arenas. See id. at 2348 n.146. It has been sharply and extensively criticized by courts and commentators. See, e.g., Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 704 (2d Cir. 1992) (stating that "the essentially utilitarian nature of a computer program . . . complicates the task of distilling its idea from its expression"); id. at 712 (regarding much software copyright case law as "the courts' attempt to fit proverbial square peg in a round hole"); Samuelson, supra, at 2310. This Article will focus solely on the issue of copyright expansion in the area of cultural expression.
[46] The Copyright Clause empowers Congress to secure authors' exclusive rights for "limited times." See U.S. CONST. art. I, § 8, cl. 8.
[47] As David Nimmer has cogently stated, under copyright's traditional public good rationale, "works are relegated to the public domain to become the heritage of all humanity and copyright is simply a temporary way station to reward authors on the road to that greater good." David Nimmer, The End of Copyright, 48 VAND. L. REV. 1385, 1416 (1995).
[48] Under the 1790 Act a copyright could be renewed for a second fourteen-year term if the author was still living at the expiration of the first term. See Act of May 31, 1790, ch. 15, § 1, 1 Stat. 124, 124.
[49] See Act of Feb. 3, 1831, ch. 16, 4 Stat. 436.
[50] See Act of Mar. 4, 1909, ch. 320, § 23, 35 Stat. 1075, 1080.
[51] See 17 U.S.C. § 302(a) (1994). In the case of works made for hire or works where the author is not identified at all or by his real name, the copyright endures for a term of 75 years from the work's first publication or 100 years from its creation, whichever is shorter. See id. § 302(c). Works created, but not published or copyrighted prior to January 1, 1978, and works in which copyright already subsisted on January 1, 1978, are protected for different terms pursuant to sections 303 and 304, respectively. See id. §§ 303-04.
[52] See H.R. 989, 104th Cong. (1995); S. 483, 104th Cong. (1995).
[53] See Copyright Term Extension Bill Gets Mixed Reaction in House Hearing, 50 Pat., Trademark & Copyright J. (BNA) 282, 283 (1995) [hereinafter Mixed Reaction] (testimony of Commissioner of Patents and Trademarks Bruce Lehman); Copyright Term Extension Bill Is Praised at Committee Hearing, 50 Pat., Trademark & Copyright J. (BNA) 589, 590 (1995) [hereinafter Bill is Praised] (testimony of Commissioner of Patents and Trademarks Bruce Lehman). Proponents also argue that the extension is desirable to harmonize U.S. law with a recently adopted European Union directive to its member countries to set their copyright terms at the life of the author plus 70 years so that U.S. copyright owners will not be deprived of additional European royalties. See Mixed Reaction, supra, at 282 (testimony of Deputy U.S. Trade Representative Charlene Barshefsky); Bill is Praised, supra, at 590 (testimony of Register of Copyrights Marybeth Peters).
[54] See Mixed Reaction, supra note 53, at 283 (testimony of Prof. Dennis Karjala); Bill is Praised, supra note 53, at 591 (testimony of Prof. Peter Jaszi).
[55] Indeed, in the early years of copyright relatively few individuals could afford to acquire books on a regular basis and, accordingly, sales to libraries made up a significant source of publisher revenue. See CATHY DAVIDSON, REVOLUTION AND THE WORD: THE RISE OF THE NOVEL IN AMERICA 27-28 (1986).
[56] Although there is no reported case that explicitly holds as such, authorities have generally concurred that, except perhaps in unusual circumstances, a single handwritten copy of a protected published work made for the copier's own private use would be noninfringement under the fair use doctrine or de minimis infringement doctrine. See, e.g., American Geophysical Union v. Texaco Inc., 60 F.3d 913, 916 (2d Cir. 1994) (distinguishing systematic copying by company scientists from "copying by an individual, for personal use in research or otherwise (not for resale)," which, "under the fair use doctrine or the de minimis doctrine . . . might well not constitute an infringement"); Williams & Wilkins Co. v. United States, 487 F.2d 1345, 1350 (Ct. Cl. 1973) ("[I]t is almost unanimously accepted that a scholar can make a handwritten copy of an entire copyrighted article for his own use."); cf. MELVILE B. NIMMER & DAVID NIMMER, 3 NIMMER ON COPYRIGHT § 13.05[E], at 13-253 (1995) [hereinafter NIMMER ON COPYRIGHT] (recognizing that court might be impelled by "force of custom" to find that personal, handwritten copy would constitute noninfringing fair use, but arguing that such result could "not be reconciled with the rationale for fair use"). Under the "first sale doctrine," codified in section 109 of the Copyright Act, the owner of a copy of a protected work is generally free to sell, lend, or otherwise dispose of that copy, without the authority of the copyright owner. See 17 U.S.C. § 109(a) (1994).
[57] See Ginsburg, supra note 3, at 1477-78.
[58] See Jan Olsen, Cornell University's Albert R. Mann Library: A Prototype for Today's Electronic Library, LIBRARY HI TECH, Dec. 1994, at 31, 32-37.
[59] Cf. Volokh, supra note 21, at 1809-17 (predicting that hard copy distribution of record albums will be replaced by commercial digital delivery of consumer-selected songs, of which in some instances consumers will purchase copy of the delivered music and in others, including pay-per-play and custom-mix radio transmission, they will not).
[60] In Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), the Supreme Court held that home videotaping of television programs for purposes of "time-shifting," or watching a program after it has been broadcast, was a noninfringing fair use. More recently, the Second Circuit amended its opinion in American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2d Cir. 1994), to clarify that its holding that archival copying by Texaco research scientists was an infringement did not extend to individual copying "for personal use in research or otherwise," which, the court recognized, "might well" be noninfringing "under the fair use doctrine or de minimis doctrine." Id. at 916.
[61] See 17 U.S.C. §§ 1003-07 (1994).
[62] See id. § 1008.
[63] See id. § 109(b); see also Agreement on Trade Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods of the General Agreement on Tariffs and Trade, Apr. 15, 1994, arts. 11, 14, reprinted in SELECTED STATUTES AND INTERNATIONAL AGREEMENTS ON UNFAIR COMPETITION, TRADEMARK, COPYRIGHT AND PATENT 410, 415-16 (Paul Goldstein et al. eds., 1995) [hereinafter TRIPs] (requiring member states to accord commercial rental rights in computer programs, cinematographic works, and sound recording in certain circumstances).
[64] Under the Copyright Act, "[t]o `display' a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process." 17 U.S.C. § 101 (1994) (emphasis added). The House Report accompanying the Act makes clear that "display" would apply to remote electronic access. It states that the term includes "the transmission of an image by electronic or other means, and the showing of an image on a cathode ray tube, or similar viewing apparatus connected with any sort of information storage and retrieval system." H.R. REP. NO. 94-1476, at 64 (1976). The Report further notes that "the display of a visual image of a copyrighted work would be an infringement if the image were transmitted by any method (by closed or open circuit television, for example, or by a computer system) from one place to members of the public located elsewhere." Id. at 80.
[65] According to the White Paper, given the current state of computer technology, viewing material on a computer screen, even without downloading it, constitutes copying. See NII WHITE PAPER, supra note 6, at 66. The White Paper grants that personal copying may constitute a fair use under current law, but strongly suggests that technological means of tracking transactions and licensing should lead to reduced application and scope of the fair use doctrine. See id. at 82 (technological tracking and fair use); id. at 84 (copyright owners should not be "taxed" to provide universal access); id. at 88 (electronic ordering and payment may become effective substitute for interlibrary loan). Taking the more restrictive approach on an issue which has yet to be definitively decided in the courts, the White Paper would also impose on the user the burden of persuasion and coming forward with evidence of fair use. See id. at 73 n.229. For a discussion of judicial treatment of this issue, see infra note 232.
[66] The White Paper contends that such a transmission actually constitutes the making of a new copy of the work, rather than the transfer of the transmitter's copy, and as such the first sale doctrine does not apply. See NII WHITE PAPER, supra note 6, at 92-94. Ostensibly, the White Paper recognizes that some such transfers may be a noninfringing fair use, see id. at 93, but the White Paper would sharply restrict the availability of fair use; see supra note 65.
[67] According to the authors of the White Paper, its position has already been adopted by the courts in decisions holding that booting works into computer RAM constitutes the making of a copy. See NII WHITE PAPER, supra note , at 65 n.204 (citing MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 519 (9th Cir. 1993)).
[68] As Benjamin Kaplan correctly notes, the infringement problem in pretwentieth-century adaptation cases was answered, in contrast to today's approach, "by looking not so much to what the defendant had taken as to what he had added or contributed." BENJAMIN KAPLAN, AN UNHURRIED VIEW OF COPYRIGHT 17 (1967). In fact, eighteenth-century English judges, including Lord Mansfield, generally lauded the defendants' "improvements" as "extremely useful" and "meritorious." Sayre v. Moore, 102 Eng. Rep. 139 (K.B. 1785); Burnett v. Chetwood, 35 Eng. Rep. 1008 (Ch. 1720); Newbery's Case, 98 Eng. Rep. 913 (Ch. 1773).
[69] See Stowe v. Thomas, 23 F. Cas. 201 (C.C.E.D. Pa. 1853) (No. 13,514).
[70] The 1870 Copyright Act provided that "authors may reserve the right to dramatize or to translate their own works." Act of July 8, 1870, ch. 230, § 86, 16 Stat. 212 (1871). The 1909 Act added the right to make adaptations and other versions of certain types of original works. See Act of March 4, 1909, ch. 320, § 1(b), 35 Stat. 1075, 1075. For a synopsis of the 1909 adaptation provisions, see Paul Goldstein, Derivative Rights and Derivative Works in Copyright, 30 J. COPYRIGHT SOC'Y USA 209, 214 (1983). The Copyright Act of 1976 expands this right by according authors the exclusive right to prepare derivative works based upon any type of copyrighted work. See 17 U.S.C. § 106(2) (1994). It defines "derivative work" broadly to include "a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted." Id. § 101. For an insightful and detailed discussion of courts' gradual move from a focus on defendants' contributions to a view that copyright owners are generally entitled to control any use of expression from which they might profit, see Lunney, supra note 30, at 534-40.
[71] See 17 U.S.C. § 106(2) (1994).
[72] Id. § 101 (definition of "derivative work").
[73] Roth Greeting Cards v. United Card Co., 429 F.2d 1106, 1110 (9th Cir. 1970) (holding that defendant's imitative greeting card may be infringing even though it copied neither copyrighted text nor copyrighted artwork).
[74] See 3 NIMMER ON COPYRIGHT, supra note 56, § 13.03[A][1][b], at 13-36.
[75] See, e.g., Tin Pan Apple Inc. v. Miller Brewing Co., 30 U.S.P.Q.2d (BNA) 1791 (S.D.N.Y. 1994) (declining to hold, as matter of law, that defendant's digital sampling of words "Hugga-Hugga" and "Brr" from plaintiff's song constituted noninfringing copying of noncopyrightable material); Jarvis v. A & M Records, 27 U.S.P.Q.2d (BNA) 1812, 1817-19 (D.N.J. 1993) (denying defendant's motion for summary judgment on grounds that genuine issue of material fact existed as to whether sounds and phrases "ooh," "moves," and "free your body" were significant to song from which they were digitally sampled and regarding fact that "[t]he two songs were utterly unlike and reached completely different markets" as irrelevant to question of infringement).
[76] See 3 NIMMER ON COPYRIGHT, supra note 56, § 13.03[A][2], at 13-49. The modern position regarding the irrelevance of the defendant's contribution was cogently stated by Learned Hand: "[N]o plagiarist can excuse the wrong by showing how much of his work he did not pirate." Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (2d Cir. 1936).
[77] As Terry Eagleton puts it: "[A]ll poems can be read as rewritings of other poems." TERRY EAGLETON, LITERARY THEORY: AN INTRODUCTION 183 (1983).
[78] See Robert C. Denicola, Copyright and Free Speech: Constitutional Limitations on the Protection of Expression, 67 CAL. L. REV. 283 (1979); Paul Goldstein, Copyright and the First Amendment, 70 COLUM. L. REV. 983 (1970); Melville B. Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. REV. 1180 (1970); L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 VAND. L. REV. 1 (1987).
[79] See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985) (explaining that First Amendment protections are "already embodied in the Copyright Act's distinction between copyrightable expression and uncopyrightable facts and ideas"); Roy Export Co. v. CBS, 672 F.2d 1095, 1099 (2d Cir. 1982) ("No circuit that has considered the question . . . has ever held that the First Amendment provides a privilege in the copyright field distinct from the accommodation embodied in the `fair use' doctrine.").
[80] In addition to relying on the safeguards as a whole in dismissing calls to reevaluate the First Amendment copyright relationship, Congress and the courts have approved the erosion of each internal safeguard in turn, while relying on the other safeguards to take up the slack. See Jessica Litman, Copyright and Information Policy, LAW & CONTEMP. PROBS., Spring 1992, 185, 204-06 (1992).
[81] The idea/expression dichotomy is codified in section 102(b) of the Copyright Act, which provides: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." 17 U.S.C. § 102(b) (1994); see also Alfred C. Yen, A First Amendment Perspective on the Idea/Expression Dichotomy and Copyright in a Work's "Total Concept and Feel", 38 EMORY L.J. 393 (1989).
[82] As Judge Learned Hand said, the line between idea and expression "wherever it is drawn, will seem arbitrary." Nichols v. Universal Pictures Corp., 45 F.2d 119, 122 (2d Cir. 1930). As a result, Hand noted thirty years later that "[t]he test for infringement of a copyright is of necessity vague." Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960).
[83] The fair use doctrine is codified at 17 U.S.C. § 107 (1994).
[84] See id. The factors set forth in the statute are not exclusive. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 587-88 (1985) (Brennan, J., dissenting); American Geophysical Union v. Texaco Inc., 37 F.3d 881, 886 (2d Cir. 1994).
[85] See, e.g., 3 NIMMER ON COPYRIGHT, supra note 56, § 13.05[A], at 3-156 to 3-159 (analyzing fair use factors and concluding that their "infinite elasticity" results in their "inability to resolve difficult questions"); Fisher, supra note 27, at 1668-69, 1692-95 (describing equitable nature of fair use doctrine, but concluding that doctrine as it stands is incoherent).
[86] See Lunney, supra note 30, at 546-52.
[87] For a discussion of these phenomena and their potential ramifications, see GOLDSTEIN, supra note 21, at 223-34; Jane C. Ginsburg, Copyright Without Walls?: Speculations on Literary Property in the Library of the Future, REPRESENTATIONS, Spring 1993, at 53, 59-64; Mark A. Lemley, Shrinkwraps in Cyberspace, 35 JURIMETRICS J. 311 (1995).
[88] See Mark A. Lemley, Intellectual Property and Shrinkwrap Licenses, 68 S. CAL. L. REV. 1239, 1249-50 (1995).
[89] See ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996).
[90] An amendment to Article 2 of the Uniform Commercial Code to cover such licenses is under consideration by the Permanent Editorial Board for the Uniform Commercial Code and the amendment is supported by the White Paper. See NII WHITE PAPER, supra note 6, at 58-59.
[91] See Joel Rothstein Wolfson, Information Transactions on the Information Superhighway: It's Not Just Software Law Anymore, 6 J. PROPRIETARY RTS., Nov. 1994, at 2, 2-3. But see John B. Kennedy & Shoshana R. Davids, Web-Site Agreements Do Not Wrap Up IP Rights, NAT'L L.J., Oct. 23, 1995, at C3 (concluding that many current World Wide Web site agreements are probably unenforceable because they are not sufficiently conspicuous and do not require site visitors actively to manifest assent after having opportunity to review license terms).
[92] See 17 U.S.C. § 301 (1994); see also David A. Rice, Public Goods, Private Contract and Public Policy: Federal Preemption of Software License Prohibitions Against Reverse Engineering, 53 U. PITT. L. REV. 543, 594-95 (1992) (asserting that software shrinkwrap licenses should be preempted).
[93] NII WHITE PAPER, supra note 6, at 58-59.
[94] Throughout most of the nineteenth century, the United States was a net importer of copyrighted works, primarily books from Great Britain. Largely as a result, the United States did not accord domestic copyright protection to foreign works until Congress enacted the International Copyright Act of 1891, 26 Stat. 1106, and even then it imposed, as a condition for protection, compliance with U.S. registration, notice, and deposit requirements and the American manufacture of "any book, chromo, lithograph or photograph." Id. § 3. Today, however, the United States is the world's largest exporter of copyrighted works. See MARSHALL A. LEAFFER, UNDERSTANDING COPYRIGHT LAW § 12.5 (1989).
[95] See Herbert Hovenkamp, The Marginalist Revolution in Legal Thought, 46 VAND. L. REV. 305, 308-09 (1993).
[96] See generally Symposium, Intellectual Property Law Theory, 68 CHI.-KENT L. REV. 583 (1993) (treating intellectual property law from philosophical, economic, and artistic perspectives).
[97] Stanford Law School Professor Paul Goldstein's copyright treatise views copyright principally from an economic perspective and employs neoclassical analysis frequently (although not exclusively). See GOLDSTEIN, supra note 18, §§ 1.14.2.3-.4, at 1:51-57 (maintaining that compulsory licenses, exemptions, and liability rules that detract from copyright owners' full property rights should be employed sparingly, if at all, because of their detrimental effect on owner investment in existing works and disruption of pricing mechanism by which consumers signal what works they want). Professor Goldstein invokes the neoclassicist approach more expressly in his recent provocative and captivating account of copyright's inner workings from Gutenberg to the digital age. See GOLDSTEIN, supra note 21, at 176-79, 217-24, 236. A number of scholars assert that a misguided natural rights approach, together with vestiges of nineteenth-century Romanticism, has pushed copyright in the direction of a full common law property right, a right that is immune to claims of public access. See, e.g., JAMES BOYLE, SHAMANS, SOFTWARE, AND SPLEENS: LAW AND THE CONSTRUCTION OF THE INFORMATION SOCIETY 51-59 (1996); MARK ROSE, AUTHORS AND OWNERS: THE INVENTION OF COPYRIGHT (1993); Jaszi, supra note 9; Peter Jaszi, Toward a Theory of Copyright: The Metamorphoses of "Authorship", 1991 DUKE L.J. 455 [hereinafter Jaszi, Toward a Theory]; Litman, supra note 9, at 965-66; see also Gordon, Self-Expression, supra note 8, at 1540 (pointing finger at misinterpretation of Lockean natural rights theory). This claim is wholly unconvincing. Aside from an early and sporadic influence, the notion that authors are entitled, as a matter of natural right, to a reward for their intellectual labor, let alone to a full proprietary right in their creative product, has been rejected repeatedly and in no uncertain terms by both Congress and the courts. See, e.g., Fogerty v. Fantasy, Inc., 114 S. Ct. 1023, 1029 (1994) ("We have often recognized the monopoly privileges that Congress has authorized, while `intended to motivate the creative activity of authors and inventors by the provision of a special reward,' are limited in nature and must ultimately serve the public good.") (quoting Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984)). In addition, even when the idea of giving a reward to authors is presented as a secondary rationale for copyright, it is stated either as an inducement to creative production, see, e.g., United States v. Paramount Pictures, Inc., 334 U.S. 131, 158 (1948) ("It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius."), or as a "fair return," Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 545-46 (citing Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975)), "commensurate with the services rendered," Mazer v. Stein, 347 U.S. 201, 219 (1954), a formulation that envisions a limited claim to compensation, not a broad proprietary entitlement. For a fuller explication of this point, see Marci A. Hamilton, Appropriation Art and the Imminent Decline in Authorial Control over Copyrighted Works, 42 J. COPYRIGHT SOC'Y 93, 98-112 (1994) (arguing that those who assert material natural rights/Romanticism influence are "batting at a straw man"); Neil Netanel, The Law and Literature Attack on the Law of Literature: Should Copyright Be Deconstructed? (1993) (unpublished manuscript, on file with author) (arguing that claim of influence of Romanticism on early and subsequent copyright doctrine is highly exaggerated).
[98] The leading case is Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) (holding that story in The Nation composed of quotes, paraphrases, and facts drawn exclusively from manuscript by former President Gerald Ford was not fair use under Copyright Act). In that case the Supreme Court in effect recognized, under the rubric of copyright, an expansive proprietary right to capture the full economic value of the initial release of information. Twice citing to an article in which Professor Wendy Gordon explicitly laid out a neoclassicist view of copyright and fair use, see Gordon, Fair Use, supra note 8, the Court ruled that the fair use "exception" would be available only in highly circumscribed instances of bilateral market failure. See 471 U.S. at 559, 566 n.9. Fair use, the Court stated, is inappropriate unless a "`reasonable copyright owner [would] have consented to the use'" given the "`importance of the material copied or performed from the point of view of the reasonable copyright owner.'" Id. at 550 (quoting ALAN LATMAN, FAIR USE OF COPYRIGHT WORKS 15 (1958), reprinted in STUDIES ON COPYRIGHT 779 (1963)); see also ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1449 (7th Cir. 1996) (upholding enforceability of "shrinkwrap licenses" that proscribe user copying of uncopyrightable material); American Geophysical Union v. Texaco, Inc., 37 F.3d 881, 897-99 (2d Cir. 1994) (holding that availability of workable market for journal-article photocopy licensing through establishment of collective licensing organization militates against fair use for unlicensed photocopying, even apart from any showing of lost subscription revenue); Salinger v. Random House, Inc., 811 F.2d 90, 99-100 (2d Cir. 1987) (holding that author was entitled to protect potential market for his unpublished letters, even though he disavowed any intention to publish them during his lifetime).
[99] See supra text accompanying notes 65-67, 90-93.
[100] See, e.g., Ralph S. Brown, Eligibility for Copyright Protection: A Search for Principled Standards, 70 MINN. L. REV. 579, 596-600 (1985); Fisher, supra note 27, at 1700-04; Alfred C. Yen, Restoring the Natural Law: Copyright as Labor and Possession, 51 OHIO ST. L.J. 517, 518 (1990).
