Standing copyright law on its head? The googlization of everything and the many faces of property

Texas Law Review

Volumn 85, Issue 7, 2007, Pages 1799-1869

  Bracha, Oren ^a  

^a UNIVERSITY OF TEXAS   (United States)

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EID: 34547734373     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (387)

1. Vannevar Bush, As We May Think, ATLANTIC MONTHLY, July 1945, at 101, 103.
2. John Markoff & Edward Wyatt, Google Is Adding Major Libraries to Its Database, N.Y. TIMES, Dec. 14, 2004, at Al;
3. Stephanie Olsen, Google Adds Major Libraries to Its Database, CNET NEWS.COM, Dec. 14, 2004, http://news.com.com/ Google+adds+major+libraries+to+its+database/2100-1025_3-5489921.html. Google's official announcement is available at http://www.google.com/press/pressrel/ print_library.html. The project had antecedents and had been taking shape for a long time prior to December 2004. For a short history of the project,
4. see History of Google Book Search, http://books.google.com/googlebooks/ newsviews/history.html. The Google Print Library Project was later expanded under the name of Google Book Search.
5. ROBIN JEWELER, CONGRESSIONAL RESEARCH SERVICE REPORT FOR CONGRESS, THE GOOGLE BOOK SEARCH PROJECT: IS ONLINE INDEXING A FAIR USE UNDER COPYRIGHT LAW? 1 (2005), available at http://www.opencrs.com/rpts/RS22356_20051228.pdf.
6. Google Print Library Project (renamed Google Books Library Project) is a component of Google Book Search. The other major component is Google Books Partner Program, which offers search and some access to texts of books under license from the copyright owners. See About Google Book Search, http://books.google.com/intl/en/googlebooks/about.html.
7. For a detailed survey of the participating libraries and the materials included in the project, see Siva Vaidhyanathan, The Googlization of Everything and the Future of Copyright, 40 U.C. DAVIS L. REV. 1207, 1215-16 (2007) (explaining the contributions of each of the participating libraries).
8. Google Corporate Information: Company Overview, http://www.google.com/ corporate/.
9. See Complaint, McGraw-Hill Cos. v. Google Inc., No. 05-CV-8881 (S.D.N.Y. filed Oct. 19, 2005);
10. Class Action Complaint, Author's Guild v. Google Inc., No. 05-CV-8136 (S.D.N.Y. filed Sept. 20, 2005).
11. For a visual demonstration of the search results for the various kinds of works on Google Book Search, see Google Book Search Library Project, http://books.google.com/googlebooks/library.html.
12. For a more detailed description of the architecture of the Google Books Library Project, see Hannibal Travis, Google Book Search and Fair Use: iTunes for Authors, or Napster for Books?, 61 U. MIAMI L. REV. 601, 608-14 (2006)
13. and Emily Anne Proskine, Note, Google's Technicolor Dreamcoat: A Copyright Analysis of the Google Book Search Library Project, 21 BERKELEY TECH. L.J. 213, 217-19 (2006).
14. See JEWELER, supra note 2, at 1 ("Because of the unique facts and issues presented, there is scant legal precedent to legitimize Google's claim that its project is protected by copyright law's fair use exception to liability for infringement.");
15. Jonathan Band, The Google Library Project: Both Sides of the Story, l PLAGIARY: CROSS DISCIPLINARY STUDIES IN PLAGIARISM, FABRICATION, AND FALSIFICATION 6 (2006), available at http.//www.hti.umich.edu/p/ plag/images/5240451.0001.002.pdf ("This article will attempt to set forth the facts and review the arguments in a systematic manner. Although both sides have strong legal arguments, the article concludes that the applicable legal precedents support Google's fair use position." (footnote omitted));
16. Elisabeth Hanratty, Google Library: Beyond Fair Use?, 2005 DUKE L. & TECH. REV. 10, ¶, http://www.law.duke.edu/journals/dltr/articles/pdf/2005dltr0010.pdf ("Without a significant change in interpretation of the law, it is unlikely that Google will be able to successfully claim its actions constitute fair use . . . .");
17. Travis, supra note 7, at 601 ("I argue that Google's book search capability may be a fair use . . . .");
18. Proskine, supra note 7, at 232 ("It is likely that the Google Print Library Project could be deemed a fair use, but detailed analysis of the four fair use factors fails to provide certainty regarding the likely success of Google's defense.").
19. See Vaidhyanathan, supra note 4, at 1218 ("Because Google's defense in the property realm depends on convincing courts that its service is in the public interest, both privacy and privatization matter to the property debate, not to mention the overall policy questions concerning Google's emerging role as a dominant force in our information ecosystem.").
20. For a similar but narrower analysis, see Michael R. Mattioli, Opting Out: Procedural Fair Use (Mar. 1, 2006) (unpublished manuscript), available at http://ssrn.com/abstract=892283.
21. Stephanie Olsen, Publishers Balk at Google Book Copy Plan, CNET NEWS.COM, May 24, 2005, http://news.com.com/ Publishers+balk+at+Google+book+copy+plan/2100-1025_3-5719156.html. Google's opt-out instructions can be found online.
22. See Google Book Search Help Center, https://print.google.com/support/ publisher/bin/answer.py?answer=20771&topic=1047 (explaining what to do if an author finds her book on Google Book Search and would like to remove it).
23. Patricia Schroeder, the head of the Association of American Publishers and a former member of Congress, was quoted as reacting to Google's opt-out defense by saying that "[t]hat is really turning [copyright] on its head." Edward Wyatt, Google Library Database Is Delayed, N.Y. TIMES, Aug. 12, 2005, at B9. According to another version, Ms. Schroeder said that "this knocks the notion of copyright on its head."
24. China Martens, Google Provides Opt-Out for Publishers, COMPUTERWORLD, Aug. 15, 2005, http://www.computerworld.com.au/index. php/id;548632850. The Text and Academic Authors Association took a similar position in a public announcement on their Web site.
25. See Richard Hull, Executive Director, Text and Academic Authors Association, News, Notes from the Executive Director (Sept. 2, 2005), http://taaonline.net/news/09_02_05.html ("TAA takes the position that copyright law is being turned on its head, and that it should be the responsibility of Google to request permission, and not the copyright holders [sic] responsibility to take the initiative."). Keith Kupferschmid of the Software and Information Industry also expressed concerns about the implications of Google's project for copyright law.
26. See Anandashankar Mazumdar, Publishers: Value of Book Search Project Shows That Scanning Is Not Fair Use, 71 PAT. TRADEMARK & COPYRIGHT J. (BNA) 94, 96 (2005) (explaining Keith Kupferschmid's claim "that Google's decision to treat this use as a fair use not requiring authorization was 'in contravention of well established principles of copyright law'").
27. See infra text accompanying notes 92-117.
28. See Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710 (1917)
29. [hereinafter Hohfeld, Legal Conceptions II];
30. Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16 (1913) [hereinafter Hohfeld, Legal Conceptions I].
31. See Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972).
32. See Abraham Bell & Gideon Parchomovsky, Pliability Rules, 101 MICH. L. REV. 1 (2002).
33. See, e.g., Richard A. Epstein, What Light If Any Does the Google Print Dispute Shed on Intellectual Property Law?, 7 COLUM. SCI. & TECH. L. REV. 1, 5-10 (2006) (arguing that the structure of copyright, in the context of the Google Print project, is not amenable to relaxation by opting out).
34. See BRUCE ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION 26 (1977) (explaining that the bundle of entitlement concept has become a "consensus view so pervasive that even the dimmest law student can be counted upon to parrot the ritual phrases on command").
35. Hohfeld, Legal Conceptions II, supra note 14, at 712;
36. Hohfeld, Legal Conceptions I, supra note 14, at 28.
37. Duncan Kennedy & Frank Michelman, Are Property and Contract Efficient?, 8 HOFSTRA L. REV. 711, 751 (1980).
38. Kenneth J. Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325, 361-62 (1980) ("The complete acceptance of the Hohfeldian conception of property by the American legal establishment was signaled by the promulgation of the American Law Institute's Restatement of Property in 1936").
39. For the historical development of this concept of property, see Thomas Grey, The Disintegration of Property, in 22 NOMOS 69, 73-76 (J. Roland Pennocke & John W. Chapman eds., 1980),
40. and Vandevelde, supra note 21, at 357-66.23. The Hohfeldian definition of a right is a legal claim allowing one person to require or prevent a certain act or acts by another, backed by the state's coercive power.
41. Hohfeld, Legal Conceptions I, supra note 14, at 30-31. The necessary logical correlative of a right is a duty, or the legal state in which a person is subject to a right claim by another. Id. at 31-32.
42. A privilege is a legal state under which one can engage or refrain from engaging in certain acts, free from anyone's ability to use state coercion in this regard. Id. at 32-33. The necessary logical correlative of a privilege is a lack of right by another or, in Hohfeld's terminology, a "no-right." Id. at 33-35.
43. See Hanoch Dagan, The Craft of Property, 91 CAL. L. REV. 1517, 1534-35 (2003) ("To know if and how the existing configuration of a property form should affect the legal outcome . . . we must analyze the forms of property from a normative and contextual . . . perspective."). This does not necessarily mean endless fragmentation of property rights into completely ad hoc "laundry lists" of entitlements. Id. at 1534, 1562. The particularism of property rights entails, however, a great variance among specific bundles of property rights according to social context and relevant policies. Id. at 1562-63.
44. See Duncan Kennedy, The Stakes of Law, or Hale and Foucault!, 15 LEGAL STUD. F. 327, 328-34 (1991) (exploring the importance of legal rules to economic distribution).
45. See William W. Fisher III, The Development of Modern American Legal Theory and the Judicial Interpretation of the Bill of Rights, in A CULTURE OF RIGHTS: THE BILL OF RIGHTS IN PHILOSOPHY, POLITICS AND LAW - 1791 AND 1991, at 266, 276-79 (Michael J. Lacey & Knud Haakonssen eds., 1991) (describing the legal realist philosophy that legal rules should make their underlying policies clear).
46. Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809, 822-23 (1935).
47. See 17 U.S.C. §§ 106-106A (2000) (enumerating the "exclusive rights" of a copyright owner under § 106, and of the author of a work of visual art under § 106A).
48. 17 U.S.C. §§ 107-122.
49. 17 U.S.C. § 201(d)(2).
50. See, e.g., 17 U.S.C. § 116 (providing for the possibility of negotiated licenses for jukeboxes); 17 U.S.C. § 122 (providing for similar licenses for satellite carriers within local markets).
51. See 17 U.S.C. § 106(4) (granting the exclusive right, subject to §107, to the owner of a copyright for musical work to "perform the copyrighted work publicly"); 17 U.S.C. §114(a) ("The exclusive rights of the owner of copyright in a sound recording . . . do not include any right of performance under section 106(4).").
52. See 17 U.S.C. § 106(4) (creating the right to perform the copyrighted work publicly for "literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works").
53. See 17 U.S.C. §§ 106(6), 114(d) (granting the right of a copyright holder to "perform the copyrighted work publicly by means of a digital audio transmission" and listing limitations to that right).
54. See 17 U.S.C. §120(a) ("The copyright in an architectural work that has been constructed does not include the right to prevent the making . . . of . . . pictorial representations of the work, if the building . . . is located in or ordinarily visible from a public place.").
55. See 17 U.S.C. § 108 (allowing reproduction of works by libraries and archives).
56. The highly fragmented character of modern copyright could be ascribed to various factors: (a) the scope of modern copyright law that covers a very broad and heterogeneous set of subject matter, practices, and industries, see, e.g., 17 U.S.C. §§ 106(4), 106(6), 108, 120(a) (spanning such categories as music performance, music recording, archival activities, and architectural designs); (b) the fast pace of technological change that influences the field; (c) the statutory character of the field and its susceptibility to interest group politics and negotiated compromises among various "constituencies."
57. See Calabresi & Melamed, supra note 15, at 1092-93 (describing the protection of entitlements under a property rule, liability rule, and inalienability rule).
58. Since the original Calabresi and Melamed article, many nuances and subdivisions have been suggested for classifying enforcement rules. Nonetheless, the original tripartite taxonomy is still vital as a rough but useful simplification. See, e.g., Saul Levmore, Unifying Remedies: Property Rules, Liability Rules, and Startling Rules, 106 YALE L.J. 2149, 2151-53 (1997) (using the Calabresi-Melamed framework to describe the range of possible remedies or rules that may exist).
59. See generally Bell & Parchomovsky, supra note 16, at 15-25 (reviewing the normative and descriptive challenges to the Calabresi-Melamed framework).
60. Calabresi & Melamed, supra note 15, at 1092.
61. Id. at 1092.
62. Id. at 1092-93.
63. See, e.g., 17 U.S.C. § 502 (2000) (permitting injunctive relief to prevent or limit the infringement of a copyright).
64. See Mark A. Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 DUKE L.J. 147, 158-64 (1998) (discussing the collapse of the traditional fourfactor preliminary injunction test into a "reasonable likelihood of success" test in copyright infringement cases).
65. See, e.g., 17 U.S.C. §§ 111(d)-(e), 114(d)-(j), 115, 116, 118, 119, 122 (limiting the exclusive right of copyright holders in certain instances by providing compulsory licensing).
66. The rights of attribution and integrity protected under § 106A may not be transferred, but they may be waived under certain circumstances. See 17 U.S.C. § 106A(e) (proscribing the transfer of rights of attribution and integrity but permitting their waiver).
67. The rights of authors to terminate transfers and licenses of their copyrights remain valid "notwithstanding any agreement to the contrary." 17 U.S.C. § 203(a)(5).
68. Bell & Parchomovsky, supra note 16, at 5.
69. Hohfeld's analysis recognized the dynamic character of legal norms. See Hohfeld, Legal Conceptions I, supra note 14, at 28-30 (describing the difficulty of formally defining legal relations). His procedural table of legal relations anticipated much of what I refer to here as "transformation rules."
70. See id. at 30 (illustrating Hohfeld's table of legal relations). For expositional purposes, however, I chose not to use Hohfeld's terminology in elaborating the notion of transformation rules.
71. See Bell & Parchomovsky, supra note 16, at 27 (describing how a pliability rule allows the entitlement holder to affect the nature of the entitlement protection).
72. Id. at 5.
73. Copyright in works created after January 1, 1978, lasts for the life of the author plus 70 years, or for the shorter of 95 years from publication or 120 years from creation in the case of an anonymous work, a pseudonymous work, or a work made for hire. 17 U.S.C. § 302.54. Bell and Parchomovsky call this rule a "zero-order-pliability rule" because it involves a property rule supplanted by a liability rule that requires compensation of the sum of zero. Bell & Parchomovsky, supra note 16, at 39-49. As I explain below, it is much more natural and accurate
74. to understand such a rule as a transformation from a right protected by a property rule to a mere nonright/privilege. See infra text accompanying notes 75-79.
75. 17 U.S.C. § 115. The § 115 cover license defines conditions under which the property rule protection of the reproduction and distribution entitlements in musical works is converted into a liability rule. 17 U.S.C. § 115(a). This transformation is stipulated upon several conditions, such as previous lawful fixation of the musical work and notice to the copyright owner. 17 U.S.C. § 115(a)(l)(i), (b)(1). The occurrence of these circumstances is the triggering event that transforms the enforcement rule.
76. The § 512(c) safe haven converts a privilege into a right protected by a property rule. The section exempts, under certain circumstances, hosts of online materials from monetary copyright liability. 17 U.S.C. § 512(c). The exemption does not apply, however, when a notice of infringing material by the copyright owner is accepted and the host does not act expeditiously to remove or disable the material. Id. Thus, the notice is the triggering event that transforms mere privileges into rights protected by a property rule.
77. A more charitable way of reading the nature of copyright objection to opt-out is as a shorthand form to the claim that there are substantive, normative reasons for rejecting opt-out, reasons that universally apply across the board and thus do not require examination in context. The most common version of such an argument is that of allocative efficiency through property rights. In a nutshell, this argument is based on a few premises: (a) efficient allocation, defined as the allocation of resources to those who are willing and able to pay the most for them, is the sole relevant normative criterion; (b) property rights, by making the owner internalize the value and cost of a particular resource, are the best mechanism for maximizing its value; (c) markets are the best alternative for allocating resources to those who value them the most. See generally Harold Demsetz, Toward a Theory of Property Rights, 57 AM. ECON. REV. PAPERS & PROC. 347 (1967) (discussing how property rights internalize externalities and explaining how market costs facilitate decisions on how to use property). From these premises follow several conclusions: (a) strong property rights protection should be created in regard to all or almost all imaginable resources; (b) the rules governing property rights should be as clear cut and simple as possible (this would avoid complexities and uncertainties that create transaction costs and hinder bargaining); (c) all property rights should be easily assignable, and the relevant rules should facilitate voluntary transactions and market bargaining mechanisms.
78. See, e.g., RICHARD A. POSNER, THE ECONOMIC ANALYSIS OF LAW § 3.12, at 76, §§ 3.1-3.16, at 31-88 (7th ed. 2007) ("Efficiency requires that property rights be transferable . . . . [P]eople who create excessively complex interests burden the court as well as themselves and their grantees, so there is some externality that might warrant public intervention.");
79. Demsetz, supra, at 347.
80. For application of the argument to intellectual property, see, for example, Frank H. Easterbrook, Who Decides the Extent of Rights in Intellectual Property?, in EXPANDING THE BOUNDARIES OF INTELLECTUAL PROPERTY 405 (Rochelle Cooper Dreyfus et al. eds., 2001) (arguing that copyright law should create clear rules, more property rights, and bargaining institutions to promote negotiation and economic transactions);
81. Eli Noam, Two Cheers for the Commodification of Information, in THE COMMODIFICATION OF INFORMATION 43 (Niva Elkin-Koren & Neil Weinstock Netanel eds., 2002) (arguing that "the expansion of a transaction-based system of information creation and distribution . . . will enhance the ability to create information" and "enable the distribution of information according to societal policy determinations");
82. Trotter Hardy, Property (and Copyright) in Cyberspace, 1996 U. CHI. LEGAL F. 217 (proposing that a private property regime be applied to the use of informational works in cyberspace);
83. F. Scott Kieff, Property Rights and Property Rules for Commercializing Inventions, 85 MINN. L. REV. 697 (2001) (arguing that treating patents as property rights will promote the commercialization of invention and bargaining around invention).
84. For a general survey of these arguments, see Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.¶ J. 283, 306-24 (1996);
85. Carol M. Rose, Crystals and Mud in Property Law, 40 STAN. L. REV. 577, 590 (1988). If one accepts these premises and conclusions, then it is possible to read the nature of copyright objection to opt-out as an instance of the general rejection of any arrangement that deviates from what is seen as the universally most effective way of maximizing the monolithic value that animates copyright law - efficient allocation. Whether one should accept them is a different matter. There are good reasons for rejecting the universal argument of efficient allocation through property rights in general, and specifically in the intellectual property context.
86. See, e.g., Julie E. Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of "Rights Management," 97 MICH. L. REV. 462 (1998) (critiquing economic arguments purporting to support absolute property rights in digital works);
87. Brett M. Frischmann, Evaluating the Demsetzian Trend in Copyright Law, 3 REV. L. & ECON. (forthcoming 2007);
88. Kennedy & Michelman, supra note 20, at 713 ("[This article] is concerned . . . with . . . cataloguing and refuting in detail a number of false arguments and suppositions about the economic virtues of private property and free contract.");
89. Margaret Jane Radin, A Comment on Information Propertization and Its Legal Milieu, 54 CLEV. ST. L. REV. 23 (2006) (arguing that property rights regimes for digital works should be constructed by considering contractual ordering competition[] and freedom of expression");
90. Carol M. Rose, Canons of Property Talk, or, Blackstone's Anxiety, 108 YALE L.J. 601, 621, 618-23 (1998) ("The embarrassing fact, of course, is that property rights are not thoroughly exclusive in any commonsense way, and the even more embarrassing fact is that an insistence on the Exclusivity Axiom would only obscure matters that are of great interest to the production of social wealth."). Fortunately, there is no need to discuss this critique in depth here. Even if one accepted the allocative efficiency through property rights view, it is clear that this is not currently the principle underlying American copyright law. As the above discussion demonstrates, existing copyright law is highly granular, diverse, and context specific in its choice of entitlements, enforcement rules, and transformation rules. This is exactly the opposite structure from the recommendation of uniform, broad, and clear-cut property rights. Thus, the universalizing argument about property rights is, at most, a recommendation for a radical reform of copyright law, not a description of an existing principle animating it. A discussion of the merits and demerits of such a reform is beyond the scope of this Article.
91. See supra notes 49-56 and accompanying text.
92. ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES (1991)
93. [hereinafter ELLICKSON, ORDER WITHOUT LAW];
94. Robert C. Ellickson, Of Coase and Cattle: Dispute Resolution Among Neighbors in Shasta County, 38 STAN. L. REV. 623 (1986)
95. [hereinafter Ellickson, Of Coase and Cattle].
96. Patricia L. Bellia, Defending Cyberproperty, 79 N.Y.U. L. REV. 2164, 2222 (2004).
97. Ellickson, Of Coase and Cattle, supra note 59, at 659-67.
98. The rule does not apply in cases when the cattle owner intentionally caused the trespass. Id. at 664. Deliberate trespass entails liability even when the victim's land is unfenced. Id. Various jurisdictions interpret differently the standard of deliberate trespass. Id. at 664-65. In some jurisdictions deliberate trespass can be established merely by showing that the cattle were placed in such areas as to make it fairly certain that they would wander off onto the victim's land. Id.
99. See, e.g., Bellia, supra note 60, at 2170-72 (favoring a property-rule approach and questioning the effectiveness of a liability-rule approach to restrict third party use of network resources);
100. Dan L. Burk, The Trouble with Trespass, 4 J. SMALL & EMERGING BUS. L. 27, 39-40, 53-54 (2000) (arguing that the trespass-to-chattels doctrine is poorly suited to address claims over digital media and suggesting that a theory of nuisance may be more appropriate);
101. Kevin Emerson Collins, Cybertrespass and Trespass to Documents, 54 CLEV. ST. L. REV. 41, 62-68 (2006) (proposing to reject a trespass-to-chattels doctrine for cybertrespass cases by analogy to the trespass-to-document case);
102. Richard A. Epstein, Cybertrespass, 70 U. CHI. L. REV. 73, 75-76 (2003) (noting that in some cases concerning new technologies, the courts can utilize common law trespass rules);
103. Joshua A.T. Fairfield, Virtual Property, 85 B.U. L. REV. 1047, 1072-76 (2005) (criticizing theories applying property law to online property rights);
104. Dan Hunter, Cyberspace as Place and the Tragedy of the Digital Anticommons, 91 CAL. L. REV. 439, 500-03 (2003) (opposing the attachment of a private property concept to cyberspace);
105. R. Polk Wagner, On Software Regulation, 78 S. CAL. L. REV. 457, 483 (2005) (arguing that a property rule is more effective than "legal preemption" in cyberspace regulation);
106. Richard Warner, Border Disputes: Trespass to Chattels on the Internet, 47 VILL. L. REV. 117, 121 (2002) (concluding that the trespass-to-chattels doctrine should protect the property interests of Web businesses);
107. Francis G. Lastowka, Decoding Cyberproperty 24 (ExpressO Preprint Series, Paper No. 1782, 2006), available at http://law.bepress.com/cgi/ viewcontent.cgi?article=8449&context=expresso (explaining that there are flaws in the cyberproperty doctrine).
108. For a thorough survey, see Bellia, supra note 60 (exploring a number of different doctrines and theories plaintiffs have used to make various claims, analyzing the way the courts have handled particular cases, and discussing the blurring of these doctrines and theories).
109. Id. at 2170-72.
110. See, e.g., Am. Online, Inc. v. IMS, 24 F. Supp. 2d 548, 550 (E.D. Va. 1998);
111. CompuServe Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015, 1024 (S.D. Ohio 1997);
112. Intel Corp. v. Hamidi, 71 P.3d 296, 318 (Cal. 2003) (Brown, J., dissenting);
113. see also Collins, supra note 63, at 49 ("Under a network-by-consent model, . . . [u]nits of the networked resource are legally linked only by a revocable invitation of each property owner. . . .").
114. See CompuServe Inc., 962 F. Supp. at 1023-24 ("Certainly, then, there is at least a tacit invitation for anyone on the Internet to utilize [CompuServe's] computer equipment to send e-mail to its subscribers.").
115. Id. at 1024.
116. See id. ("[I]n the present case the record indicates that defendants were actually notified that they were using CompuServe's equipment in an unacceptable manner. To prove that a would-be trespasser acted with the intent required to support liability in tort it is crucial . . . defendant be placed on notice . . . he is trespassing.").
117. See, e.g., United States v. Morris, 928 F.2d 504, 510-11 (2d Cir. 1991) (interpreting the unauthorized access statute broadly to include issuing a command on one computer that seeks a response from another computer without authorization);
118. Orin S. Kerr, Cybercrime's Scope: Interpreting "Access" and "Authorization" in Computer Misuse Statutes, 78 N.Y.U. L. REV. 1596, 1601 (2003) (criticizing the courts for broadly interpreting unauthorized access statutes that could result in the criminalization of a large range of conduct).
119. The spectrum of possible notices is broad. One could signal his revocation of consent through technological means ranging from mere machine-readable "notices" (such as a robots.txt file that "asks" web-crawler applications "not to crawl" a particular site or page) to actual exclusion means (such as username/password protection). Similarly, there is a range of human-readable notice means, stretching between obscure "use policies" posted on dark corners of a Web site and an explicit written notice sent to a specific user. See Bellia, supra note 60, at 2218-24.
120. See, e.g., Warner, supra note 63, at 157 (arguing that a Web site that connects to the Internet and makes itself available to the public impliedly consents to access by anyone on the Internet).
121. See supra notes 49-52 and accompanying text.
122. See supra notes 49-52 and accompanying text.
123. Bell & Parchomovsky, supra note 16, at 53.
124. Id.
125. A Loperty rule is a transformation rule whose triggering event causes a right protected by a liability rule to be supplanted by a right protected by a property rule. See supra note 54 and accompanying text.
126. A Noperty rule is a transformation rule whose triggering event causes a no-right to be supplanted by a right protected by a property rule.
127. In a nutshell, a Loperty rule does not seem an attractive option in our context because it is likely to reproduce many of the problems it was meant to solve. I argue below that an opt-in regime is likely to impose very high transaction costs on digital-library users who are ignorant of the status of the works they are using, their owners' identity, and these owners' preferences. A Loperty rule is likely to implicate similar information problems and generate similarly high levels of transaction costs.
128. The term "digital libraries" encompasses a wide range of technologies and models, and there is no one agreed-upon definition. CHRISTINE L. BORGMAN, FROM GUTENBERG TO THE GLOBAL INFORMATION INFRASTRUCTURE: ACCESS TO INFORMATION IN THE NETWORKED WORLD 35 (2003);
129. Nancy A. Van House et al., Introduction: Digital Libraries as Sociotechnical Systems, in DIGITAL LIBRARY USE: SOCIAL PRACTICE IN DESIGN AND EVALUATION 1, 1 (Ann Peterson Bishop et al. eds., 2003). The definition supplied in the text is purposefully loose in order to encompass many of the relevant variations.
130. See MICHAEL LESK, UNDERSTANDING DIGITAL LIBRARIES 386 (Edward A. Fox ed., 2d ed. 2005) ("[I]t is clear that the early twenty-first century will see the equivalent of a major research library on the desk of every individual.");
131. Hannibal Travis, Building Universal Digital Libraries: An Agenda for Copyright Reform, 33 PEPP. L. REV. 761, 764 (2006) (detailing an agenda for the rapid digital dissemination of books, periodicals, and audiovisual materials).
132. See Christine L. Borgman, Designing Digital Libraries for Usability, in DIGITAL LIBRARY USE: SOCIAL PRACTICE IN DESIGN AND EVALUATION, supra note 80, at 85, 86-88 (discussing digital libraries as both user communities and as institutions).
133. See Travis, supra note 81, at 772 (describing early digital libraries in the legal and news professions as offering full-text newspaper articles, statutes, opinions, and more).
134. It seems that a large relative share of digital libraries is still text based. See id. at 765-77 (describing the myriad of text-based digital libraries available on the Internet). The main reason is probably the lower cost of storage and of an effective search-and-retrieval system in the case of text compared to other media. There are, however, many digital libraries that are not text based.
135. See LESK, supra note 81, at 336-43 (providing various examples of digital libraries that collect and store images, sounds, music, and videos). As the cost of storage decreases and as the use of metadata as well as the development of nontextual search tools gains momentum, digital libraries that are not text based are likely to become more ubiquitous.
136. Digital libraries are not "pure information," despite the rhetorical hyperboles to the contrary often found in foundational cyber culture texts. See NICHOLAS NEGROPONTE, BEING DIGITAL 11-20 (1995) (reflecting on the difference between "bits and atoms" in the information economy);
137. John Perry Barlow, The Next Economy of Ideas, WIRED, Oct. 2000, http://www.wired.com/wired/archive/8.10/download.html ("'Is the genie out of the bottle?' A better question would be, 'Is there a bottle?' No, there isn't.").
138. See LESK, supra note 81, at 157-68 (describing the use of computer networks for digital libraries);
139. Borgman, supra note 82, at 97 (reporting a core research concern of the Digital Library Initiative as the technical issues of operating digital libraries on computer networks);
140. Clifford Lynch, The Evolving Internet: Applications and Network Service Infrastructure, 49 J. AM. SOC'Y FOR INFO. SCI. 961, 966 (1998) (discussing the increased amount of scholarly information offered on the Internet).
141. The development of digital-library technologies was fueled in the 1990s by extensive publicly funded research programs. The most important of those
142. See, e.g., Peter Lyman, What Is a Digital Library? Technology, Intellectual Property, and the Public Interest, 125 DAEDALUS 1, 1 (1996) (examining the role of the digital library in postindustrial society).
143. The project is accused of facilitating massive copyright infringement despite the fact that absent the copyright owner's consent, Google's Print Library does not provide access to more than miniscule fragments of copyrighted text. See supra note 7 and accompanying text. One claim leveled against it is that a security breach may cause the full digital text, stored on Google's computers, to "leak out." Once the genie of the full digital text is out of the bottle and on the Internet, the argument goes, the damage will be hard to contain.
144. See Vaidhyanathan, supra note 4, at 11 (describing the initial concerned reactions of publishers to the Google project).
145. See infra notes 194-209 and accompanying text.
146. See Travis, supra note 81, at 762 (quoting Brewster Kahle, Speech to the Library of Congress as part of the "Digital Future" Series, C-SPAN television broadcast Dec. 13, 2004, available at http://www.archive.org/details/cspan_brewster_kahle).
147. See LESK, supra note 81, at 2 (listing the boons of digital libraries, including superior access, delivery, preservation, efficiency, and search capability).93. To be sure, an equalizing potential is not necessarily the actualization of the potential. Certain threshold requirements will have to be met before digital libraries can increase and equalize meaningful access to cultural materials by broad segments of society. Some of those preconditions are: the bridging of the digital divide to achieve ubiquitous computer and Internet access; technological and commercial models that maximize access and participation; widespread information literacy skills; and design features that empower traditionally marginalized populations.
148. See Ann Peterson Bishop et al., Participatory Action Research and Digital Libraries: Reframing Evaluation, in DIGITAL LIBRARY USE: SOCIAL PRACTICE IN DESIGN AND EVALUATION, supra note 80, at 161 (framing the equalizing potential of digital libraries in a description of the AFYA project - an effort to build a collection of digital tools accessible to African American women);
149. Nancy Kranich, Libraries: The Information Commons of Civil Society, in SHAPING THE NETWORK SOCIETY 279, 287, 287-92 (Douglas Schuler & Peter Day eds., 2004) (exploring the role of the Internet in bridging the gap between the "information haves and have-nots in our society").
150. For an argument to the contrary, see Jose-Marie Griffith, Why the Web Is Not a Library, in THE MIRAGE OF CONTINUITY: RECONFIGURING ACADEMIC INFORMATION RESOURCES FOR THE 21ST CENTURY 229, 230, 231-34 (Brian L. Hawkins & Patricia Battin eds., 1998) (arguing that the World Wide Web is not a library because it does not contain all the information that is in print and lacks standards, sufficient cataloging, and retrieval tools).
151. For a similar, more elaborate taxonomy, see Clifford Lynch, Colliding with the Real World: Heresies and Unexplored Questions About Audience, Economics, and Control of Digital Libraries, in DIGITAL LIBRARY USE: SOCIAL PRACTICE IN DESIGN AND EVALUATION, supra note 80, at 191, 192-93, 197-98 (asserting that three critical factors of digital libraries are (1) control and governance, (2) economics and sustainability, and (3) audience; and describing the application of these factors to various types of digital libraries, particularly focusing on the factors' relation to the audience).
152. Internet Archive: About IA, http://www.archive.org/about/about.php.
153. Id.
154. See id. (stating that, in late 1999, the Internet Archive began to include texts, audio, moving images, and software in addition to Web pages).
155. The relatively recent moving images, live music, audio, and text archives are based on users' submission of their own materials. See Internet Archive, Frequently Asked Questions, http://www.archive.org/about/faqs.php (providing directions for uploading music, movies, or text).
156. See id. (stating that the site's Web crawler "has been crawling the web since 1996, which has resulted in a massive archive," and that the Web site's designers "have designed a three dimensional index that allows browsing of web documents").
157. Burning Well is a repository for public domain images. Burning Well.Org - Free Public Domain Images and Photos, http://www.burningwell.org.
158. See Gutenberg: About - Gutenberg, http://www.gutenberg.org/wiki/ Gutenberg:About (last modified Dec. 15, 2006) ("Project Gutenberg is the first and largest single collection of free electronic books, or eBooks.").
159. See Gutenberg: Volunteering for Project Gutenberg, http://www.gutenberg.org/wiki/Gutenberg:Volunteering_for_Project_Gutenberg (last modified Nov. 28, 2006) (declaring that all Project Gutenberg digital books have been created by volunteers).
160. See Project Gutenberg Distributed Proofreaders, http://www.pgdp.net/c/ ("Once all the pages have completed these steps, a post-processor carefully assembles them into an e-book and submits it to the Project Gutenberg archive.").
161. See Wikipedia, Main Page, http://en.wikipedia.org/wiki/Main_Page (declaring that the site is the "free encyclopedia that anyone can edit").
162. Wikipedia, Who Writes Wikipedia?, http://en.wikipedia.org/wiki/Wikipedia: About#Who_writes_Wikipedia.3F (last modified May 21, 2007).
163. For the definition of "wiki," see Wikipedia, Wiki, http://en.wikipedia.org/wiki/Wiki (last modified May 23, 2007) (defining wiki as "a website that allows visitors to add, remove, and edit content").
164. YOCHAI BENKLER, THE WEALTH OF NETWORKS: HOW SOCIAL PRODUCTION TRANSFORMS MARKETS AND FREEDOM 70 (2006).
165. See BORGMAN, supra note 80, at 207 (explaining that traditional libraries have adapted their approaches as new media becomes available as a means to continue their purpose of promoting learning and innovation);
166. Lynch, supra note 95, at 201-02 (describing the competitive pressures resulting from network-based access that ultimately led to the dismantling of the unchallenged monopoly status that academic libraries formerly enjoyed).
167. See SIVA VAIDHYANATHAN, THE ANARCHIST IN THE LIBRARY: HOW THE CLASH BETWEEN FREEDOM AND CONTROL IS HACKING THE REAL WORLD AND CRASHING THE SYSTEM 115-29 (2004) (describing the role of new technologies in creating "the perfect library" of the future);
168. James H. Billington, Libraries, the Library of Congress, and the Information Age, 125 DAEDALUS 35, 46 (1996) (arguing that public libraries will be essential to the effective dissemination of electronic information due to their knowledge of local needs and interests);
169. Kranich, supra note 93, at 282-83 (noting that libraries are "ideally suited to play a critical role in rekindling civic spirit by providing not only information, but also the expanded opportunities for dialogue and deliberation that we need to make decisions about common concerns");
170. Vaidhyanathan, supra note 4, at 1220-21 (arguing that libraries' duty to the public makes them a more enduring and preferable repository of information than private catalogues with duties to shareholders, whose interests may not accord with those of the public).
171. See Travis, supra note 81, at 770-72 (discussing the limited digitization of the Library of Congress and the National Library of Medicine's catalogues due to funding and copyright considerations).
172. See id. at 771 (noting that smaller public libraries have been far more successful in digitization projects than the Library of Congress).
173. See id. at 784 (describing the goal of Project Gutenberg, an open-source, noncommercial digital library, as opening up a "universe of cultural treasures" to a global audience).
174. See generally American Memory from the Library of Congress - Home Page, http://memory.loc.gov (last modified Apr. 13, 2007). The project is part of a greater initiative by the Library of Congress. The National Digital Program is meant to be "a digital library of reproductions of primary source materials to support the study of the history and culture of the United States," encompassing "books, pamphlets, motion pictures, manuscripts, and sound recordings." Library of Congress National Digital Library Program, http://memory.loc.gov/ammem/dli2/html/lcndlp.html.
175. Originally, the library declared an ambitious plan "to convert into digital form the most important materials in its collection and in the collections of all public and research libraries in the country." Peter H. Lewis, Library of Congress Offers to Feed Data Highway, N.Y. TIMES, Sept. 12, 1994, at B11. To date the library boasts that its American Memory project offers over "5 million items available online."
176. See Mission and History (American Memory from the Library of Congress), http://memory.loc.gov/ammem/about/index.html. Despite the large number, this offering falls very short of the original ambitious goal.
177. See Travis, supra note 81, at 770 (describing the Library of Congress's goal to create a "universal digital library").
178. Mission and History (American Memory from the Library of Congress), http://memory.loc.gov/ammem/about/index.html.
179. See id. (explaining the library's role in the development of the project).
180. See BORGMAN, supra note 80, at 67 (explaining that intellectual property rights form one of the major constraints on digitization of materials and building digital libraries);
181. ESK, supra note 81, at 3 (arguing that copyright licenses are probably the largest cost impediment to the development of digital libraries);
182. Lynch, supra note 95, at 197, 200 (describing intellectual property rules and licensing schemes as the most important factors in shaping digital libraries);
183. Diane Leenheer Zimmerman, Can Our Culture Be Saved? The Future of Digital Archiving 61 (N.Y. Univ. Sch. of Law, Public Law & Legal Theory Research Paper Series, Working Paper No. 06-23, 2006), available at http://ssrn.com/abstract=920517 (noting that despite advances in digitization technology the most "intractable barrier to success is the state of copyright law").
184. U.S. CONST. art. 1, § 8, cl. 8 (granting the patent and copyright power in order to "promote the Progress of Science and useful Arts").
185. For a description of economic efficiency as a "thin" conception of "promoting] the Progress" in intellectual property law, see James Boyle, Enclosing the Genome: What the Squabbles Over Genetic Patents Could Teach Us, in PERSPECTIVES ON PROPERTIES OF THE HUMAN GENOME PROJECT 97, 107-10 (F. Scott Kieff ed., 2003) (describing how the "minimalist" account of intellectual property rights ironically confines itself to an economic analysis of intellectual property rights while arguing the Constitution bars any normative appeals other than those of promoting innovation).
186. Boyle, supra note 119, at 109.
187. See WILLIAM M. LANDES & RICHARD E. POSNER, THE ECONOMIC STRUCTURE OF INTELLECTUAL PROPERTY LAW 12-16, 37-41 (2003) (discussing the economic theory of property, including implications for copyright).
188. See id. at 22 (discussing reasons for skepticism about the social value of expansive intellectual property rights).
189. See Mark A. Lemley, The Economics of Improvement in Intellectual Property Law, 75 TEXAS L. REV. 989, 997 (1997) (describing the social costs intellectual property rules can and do impose on innovators whose work may ultimately be more socially beneficial than the protected works).
190. William W. Fisher III, Reconstructing the Fair Use Doctrine, 101 HARV. L. REV. 1659, 1703 (1988) [hereinafter Fisher, Reconstructing];
191. William Fisher, Theories of Intellectual Property, in NEW ESSAYS IN LEGAL AND POLITICAL THEORY OF PROPERTY 168, 169 (Stephen R. Munzer ed., 2001) [hereinafter Fisher, Theories].
192. See supra notes 14-24 and accompanying text.
193. In some cases, transaction costs may also influence the first-order question of whether a particular entitlement should be protected under copyright; thus one common, although often overly narrow, understanding of the fair use defense is as a mechanism for correcting market failures. In other words, this view assumes that the fair use defense comes into play, and prevents a protection of a particular entitlement, only when market conditions would produce such high transaction costs as to frustrate efficient exchanges. See, e.g., Wendy J. Gordon, Excuse and Justification in the Law of Fair Use: Commodification and Market Perspectives, in THE COMMODIFICATION OF INFORMATION, supra note 57, at 149, 162-65 (distinguishing between economists' market failure, meaning imperfect market conditions, and market failure as "inherent market limitations," meaning situations in which the market is not an acceptable institution for allocating resources);
194. 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, 1601 (1982) (illustrating how courts have employed fair use "to permit uncompensated transfers that are socially desirable but not capable of effectuation through the market").
195. LESK, supra note 81, at 279.
196. See supra notes 49-52 and accompanying text.
197. See supra note 68 and accompanying text.
198. For a discussion of the transaction cost imposed by copyright on digitization projects, see Zimmerman, supra note 118, at 21-24.
199. See 17 U.S.C. § 504(b) (2000) (explaining the calculus for damages).
200. See generally Christopher Sprigman, Reform(aliz)ing Copyright, 57 STAN. L. REV. 485, 568 (2004) (concluding that the burden of searches in copyright law is so great that reformalization is the least radical viable solution).
201. Copyright protection subsists in "original works of authorship fixed in any tangible medium of expression." 17 U.S.C. § 102. Neither notice nor registration is mentioned as a condition of copyright protection; the statute explicitly provides that copyright notice "may be placed." 17 U.S.C. §§ 401(a), 402(a). The major inducement for affixing a notice is the disallowance of an "innocent infringement" defense by defendants in mitigation of statutory damages. 17 U.S.C. §§ 401(d), 402(d).
202. 17 U.S.C. § 408(a).
203. The Copyright Act explicitly provides that registration is "permissive" and that it "is not a condition of copyright protection." 17 U.S.C. § 408(a). The major inducements to register include: prima facie evidence of validity, 17 U.S.C. § 410(c), and ability to obtain statutory damages and attorney's fees, 17 U.S.C. § 412. Registration is also a formal prerequisite for initiating an infringement action concerning domestic works. 17 U.S.C. § 411. It is very hard to assess what percentage of works is registered. The Copyright Office data only provide the numbers of registrations. In fiscal year 2004, for example, 661,469 copyrighted works were registered. U.S. COPYRIGHT OFFICE, ANNUAL REPORT OF THE REGISTER OF COPYRIGHTS 6 (2004). Despite the large number, it seems safe to assume that many more works protected by copyright were created and published in that year. For an attempt to estimate the relative share of registered works in different periods, see Sprigman, supra note 132, at 503-15 (utilizing available quantitative data and statistical methods to approximate the number of registrations in various copyright eras).
204. The risk undertaken by a user of an unregistered work may be somewhat smaller since statutory damages do not apply to acts of infringement committed prior to registration. See 17 U.S.C. § 412 (preventing awards of statutory damages and attorney's fees for infringements commenced before the work's effective registration date). The reduction of risk is not very significant, however. The scrupulous user who checks the register only attains certainty of immunity from statutory damages in regard to uses prior to the time of his search; in regard to future uses, users face the choice between the higher risk entailed by the possibility of later registration and an ongoing expense for periodical search of the register. See id. (failing to immunize those who searched, determined the work was not registered, and then counted on that determination for a future use).
205. Due to the numerous and complex extensions of copyright duration in the previous century, works created in different times are subject to different periods of protection. Post January 1, 1978, works are protected during the life of the author plus 70 years, or during the shorter of 95 years from publication or 120 years from creation in the case of a work made for hire. 17 U.S.C. § 302. Earlier works are protected for varying terms depending on date of publication and whether the copyright was renewed. Id.
206. See 17 U.S.C. § 102 (commencing copyright protection at the moment an original expression is fixed in a "tangible medium of expression"); 17 U.S.C. § 407(a) (neither deposit requirements nor acquisition provisions are conditions of copyright protection).
207. See Sprigman, supra note 132, at 502-24 (criticizing virtually perpetual copyright protection under current law and discussing how filters would pare down costs and focus system resources on works thought commercially viable by their creators).
208. 17 U.S.C. § 201(d).
209. 17 U.S.C. § 204 (a).
210. 17 U.S.C. § 205(a). The main incentive to record transfers is that such a record creates a presumption of constructive notice of ownership. 17 U.S.C. § 205(c). Again, the Copyright Office only provides data about recorded transfers. In fiscal year 2004, there were 14,979 recorded transactions, the majority of which were copyright transfers. U.S. COPYRIGHT OFFICE, supra note 135, at 8. It seems safe to assume that there were many others that were not recorded.
211. See 17 U.S.C. § 101 (defining "derivative work").
212. The seminal case is Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99 (2d Cir. 1951). The decision by Judge Frank established the very minimal standard of "distinguishable variation" that new variants have to clear in order to satisfy copyright's originality requirement. Id. at 102.
213. There is some divergence among courts about how lenient this standard is, but even the stricter interpretations set the bar of originality rather low. See 1 WILLIAM F. PATRY, COPYRIGHT LAW AND PRACTICE 161 (1994) ("Just how much creativity is required depends upon which Second Circuit case is cited.").
214. U.S. COPYRIGHT OFFICE, CIRCULAR 22: HOW TO INVESTIGATE THE COPYRIGHT STATUS OF A WORK 2-8 (2006), available at http://www.copyright.gov/ circs/circ22.pdf (explaining how to conduct a search for the copyright status of a creation).
215. Examples of organizations that specialize in the clearance of rights include entities like the Copyright Clearance Center and educational entities like the Harry Ransom Center at the University of Texas. The Copyright Clearance Center "manages the rights to over 1.75 million works and represents more than 9,600 publishers and hundreds of thousands of authors and other creators" in helping to investigate the status of various works. Copyright Clearance Center, A Practical Guide to Copyright Compliance, http://www.copyright.com/Services/CorporateGuide/solutions_frameset, htm. The Harry Ransom Humanities Research Center at the University of Texas contains the freely accessible WATCH File (Writers, Artists and Their Copyright Holders), which gives searchers information on contact persons for copyright holders for U.S. and U.K. authors and artists. The WATCH File: Writers, Artists and Their Copyright Holders, http://tyler.hrc.utexas.edu/.
216. For example, the compilers of WATCH "have made no attempt to verify any individual's claim to copyright ownership or representation." About WATCH: The WATCH File, http://tyler.hrc.utexas.edu/about.cfm.
217. Currently, the Copyright Office charges $150 per search hour or a fraction thereof. U.S. Copyright Office - Search Request Estimate, http://www.copyright.gov/forms/search_estimate.html (last modified Aug. 17, 2006).
218. U.S. COPYRIGHT OFFICE, supra note 145, at 3.
219. Id. at 1.
220. For example, see the "rightsphere" service offered online by the Copyright Clearing Center. Copyright.com, http://www.copyright.com/media/ pdfs/Prod-Rightsphere.pdf. Rightsphere is a fee-based service that instantaneously allows users to determine if they have a copyright to use the content. See id.
221. SEE WILLIAM W. FISHER & WILLIAM MCGEVERAN, THE DIGITAL LEARNING CHALLENGE: OBSTACLES TO EDUCATIONAL USES OF COPYRIGHTED MATERIAL IN THE DIGITAL AGE 80 (2006) (noting that there is a greater reluctance by rights holders regarding licensed digital uses of content as opposed to analog uses such as photocopies).
222. On the limitations of lowering transaction costs for digital libraries through digital licensing tools, see infra notes 162-63 and accompanying text.
223. The Creative Commons is a nonprofit organization that offers flexible copyright licenses for creative works. Creative Commons, http://creativecommons. org. As the text implies, one of the bitter ironies produced by the Creative Commons is the fact that the organization that was founded on an ideology of openness may be used by some in order to justify a maximalist approach to intellectual property protection. The co-opting maximalist argument is simple, though far from being foolproof: since the Creative Commons lowers the cost of licensing, and since those who are interested in no or modest protection for their works now have an easy way to achieve that goal, strong copyright protection as the default is justified.
224. A large number of items in a digital library is only a crude indicator of search cost exceeding monitoring cost. The analysis in the text assumes that search cost is increased by each additional work added to the library while monitoring cost remains constant. The latter assumption may not be strictly accurate. Larger libraries are likely to draw more end users, pose more risk from the point of view of right holders, and create a larger interest in monitoring. Thus, monitoring cost may be influenced by size. Nevertheless, as long as the marginal search cost added by each additional item in the library exceeds the added marginal monitoring cost, size can still function as an indicator. This is likely to be the case because monitoring copyright owners are unlikely to be very sensitive to size in the digital environment. The correlation between size and popularity of a digital library is only partial, and many right holders concerned about a digital leak of their work in an unsecured format will have a sufficient enforcement interest even in small-size libraries. Thus, large size seems to be a useful, albeit crude, proxy for search cost exceeding monitoring cost.
225. Microsoft and Yahoo, for example, have announced their intention to compete with Google and create their own book-search services. Anandashankar Mazumdar, Microsoft Intends to Create Service for Online Library Searches, 70 PAT. TRADEMARK & COPYRIGHT J. (BNA) 707, 707 (2005) [hereinafter Mazumdar, Microsoft];
226. Anandashankar Mazumdar, Yahoo and Partners Launch Rival to Google Print, But Seek to Avoid Copyright Issues, 70 PAT. TRADEMARK & COPYRIGHT J. (BNA) 630, 630 (2005) [hereinafter Mazumdar, Yahoo].
227. They have also announced, however, that these services will be limited to works clearly in the public domain. Mazumdar, Microsoft, supra, at 707;
228. Mazumdar, Yahoo, supra, at 630.
229. See Julie E. Cohen, Copyright and the Perfect Curve, 53 VAND. L. REV. 1799, 1812 (2000) (explaining that rules allowing owners to appropriate more benefit from their work will result in the underproduction of information goods that generate significant social benefit because the creators of these works cannot internalize this value);
230. Lemley, supra note 123, at 1056-58 (suggesting that positive externalities-large social benefits that cannot be captured-result in the undervaluation of an improver's, and thus the original copyright owner's, work).
231. For an analysis of information-forcing rules in the context of negotiation, see Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 YALE L.J. 87, 91 (1989) (arguing that penalty default rules would encourage parties to reveal private information),
232. and Ian Ayres & Eric Talley, Solomonic Bargaining: Dividing a Legal Entitlement To Facilitate Coasean Trade, 104 YALE L.J. 1027, 1030 (1995) (proposing divided entitlements as a tool for inducing the release of private information).
233. See Ayres & Gertner, supra note 157, at 91 (suggesting that default legal rules should be purposely calibrated against parties with superior information).
234. See Complaint, McGraw-Hill Cos. v. Google Inc., No. 05-CV-8881 (S.D.N.Y. filed Oct. 19, 2005); Class Action Complaint, Author's Guild v. Google Inc., No. 05-CV-8136 (S.D.N.Y. filed Sept. 20, 2005).
235. This possibility is particularly relevant in view of the likely applicability of class actions to digital-library situations. Statutory damages may be too small to induce any specific party to launch an individual lawsuit. A class action, however, may provide a strong incentive to sue, and the aggregate damages in an action involving numerous works may be very substantial.
236. Google's "Partner Program," in which publishers are invited to license their works for use on Google Book Search, is such an opt-in scheme. See Google Book Search Help Center, What is the Google Books Partner Program?, http://books.google.com/support/partner/bin/answer.py? answer=17855&topic= 321.
237. See supra notes 146-53 and accompanying text.
238. Of course, the above analysis would change if digital-copyright-clearing tools offered comprehensive and reliable information, not just about works that are regularly commercially exploited, but also about the entire pool of potentially copyrighted works. Given the incentives of the private actors who develop digital clearing systems and the vast scope of copyright protection, the availability of such comprehensive tools in the near future seems unlikely.
239. See supra subsection 11(B)(2)(a).
240. See Ayres & Talley, supra note 157, at 1030 (illustrating that transactions become more economically efficient when private information is shared).
241. See supra notes 59-62 and accompanying text.
242. For a nuanced description of the politics of open-versus-closed-range regimes in one county, see Ellickson, Of Coase and Cattle, supra note 59, at 643-53 (discussing the political conflicts that arose in Shasta County, California, over the proposed use of closed-range regimes instead of open-range regimes).
243. For a detailed analysis of the opt-out mechanism in the context of class actions, see Mattioli, supra note 10, at 19-26 (discussing the power and equity of opt-out enrollment in class action suits).
244. The two other most common theories of intellectual property, which will be bracketed here, are the labor-desert theory and the personality justification. See Fisher, Theories, supra note 124, at 168-73 (surveying the various theories of intellectual property deployed by scholars in that field).
245. See, e.g., BENKLER, supra note 108, at 276-78 (exploring the role of modern technology in making culture more participatory and transparent);
246. Jack M. Balkin, Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society, 79 N.Y.U. L. REV. 1, 33-38 (2004) (defining democratic culture as democracy as a form of social life that requires democratic participation);
247. Rosemary J. Coombe, Objects of Property and Subjects of Politics: Intellectual Property Laws and Democratic Dialogue, 69 TEXAS L. REV. 1853, 1877-80 (1991) (describing the cultural life of a democracy as quintessentially dialogical through the use of signs and responses to those signs);
248. Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace, 14 CARDOZO ARTS & ENT. L.J. 215, 224-32 (1996) (discussing the importance that the deliberative model places on social dialogue in a democracy);
249. Fisher, Reconstructing supra note 124, at 1744-66 (providing a utopian analysis of the fair use doctrine and its legal ramifications);
250. Netanel, supra note 57, at 341-64 (declaring copyright to be a state measure that uses market institutions to enhance the democratic character of society); Molly Shaffer Van Houweling, Distributive Values in Copyright, 83 TEXAS L. REV. 1535, 1546-50 (2005) (discussing copyright in the context of freedom of expression and the importance of distributive justice).
251. See Fisher, Reconstructing, supra note 124, at 1744-45 (using the ambition to advance a substantive conception of a just and attractive intellectual culture to reconstruct the fair use doctrine);
252. Fisher, Theories, supra note 124, at 172 (discussing a theory of intellectual property that is rooted in the proposition that intellectual property rights should be shaped to foster the achievement of a just and attractive culture).
253. See supra note 170.
254. See Fisher, Theories, supra note 124, at 172 (contrasting the theory of intellectual property rights as used to achieve a just and attractive culture with utilitarianism).
255. Id.
256. See, e.g., Boyle, supra note 119, at 114-15 (critiquing the assumption of Chicago School economists that revealed consumer preferences and willingness to pay are neutral descriptions of human welfare).
257. Id.
258. See Cohen, supra note 57, at 552-59 (criticizing the cybereconomist conception of social welfare and arguing that a limited-entitlements regime would be best for promoting individual and collective development).
259. See, e.g., Netanel, supra note 57, at 364 ("Significantly, the neoclassicist economic view of creative expression as a commodity and of copyright as a mechanism to further allocative efficiency, fails to account for copyright's role in democratic governance.... Copyright's fundamental purpose is to underwrite political competency, with allocative efficiency a secondary consideration.").
260. Cf. Yochai Benkler, From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access, 52 FED. COMM. L.J. 561, 565-68 (2000) (arguing that an open peer-to-peer network best serves the ability of people to come together to build the information environment);
261. Fisher, Theories, supra note 124, at 192 (offering an outline of an attractive intellectual culture as a foundation for discussion of the proper shape of intellectual property law on the Internet).
262. See Michael D. Birnhack, More or Better? Shaping the Public Domain, in THE FUTURE OF THE PUBLIC DOMAIN 59, 85 (Lucie Guibault & P. Bernt Hugenholtz eds., 2006) ("[W]e need not shy away from explicitly attempting to promote the quality of our intellectual reservoir and of our public sphere.");
263. Cohen, supra note 156, at 1813-14 (arguing that copyright prevents standardization and properly measures the value of scholarship and artistic expression).
264. See, e.g., William W. Fisher III, Property and Contract on the Internet, 73 CHI.-KENT L. REV. 1203, 1217 (1998) ("In an attractive society, all persons would be able to participate in the process of meaning-making.").
265. See, e.g., id. ("Instead of being merely passive consumers of cultural artifacts produced by others, they would be producers, helping to shape the world of ideas and symbols in which they live.").
266. See Birnhack, supra note 180, at 71-73 (explaining the participatory theory's preference for assuring the quality of discourse over the quantity of ideas in the marketplace); Elkin-Koren, supra note 170, at 231, 224-32 ("To achieve democracy, it is necessary that all those who are affected by norms of action be able to participate in their creation. Social dialogue should be democratic since it is inseparable from politics.");
267. Netanel, supra note 57, at 343-14, 341-64 ("By participating in intermediate associational and communicative networks, citizens discover, refine, and articulate their interests, enabling them to vote with deliberative judgment and petition government officials with greater effectiveness.").
268. See BENKLER, supra note 108, at 273-300 (developing a similar argument under the label of "cultural freedom");
269. Balkin, supra note 170, at 35, 34-36 ("A 'democratic' culture, then, means much more than democracy as a form of self-governance. It means democracy as a form of social life in which unjust barriers of rank and privilege are dissolved, and in which ordinary people gain a greater say over the institutions and practices that shape them and their futures.");
270. Coombe, supra note 170, at 1858, 1857-62 ("What we experience as social reality is a constellation of cultural structures that we ourselves construct and transform in ongoing practice.");
271. Elkin-Koren, supra note 170, at 234, 232-35 ("This perception of social dialogue rejects the idea that political deliberation occurs only in specific institutions, such as courts or parliaments, and perceives it as a network of social interactions that take place at endless levels and arenas.");
272. David Lange, At Play in the Fields of the Word: Copyright and the Construction of Authorship in the Post-Literate Millennium, 55 LAW & CONTEMP. PROBS., Spring 1992, at 139, 148 ("Authorship. . . situates us in our relationship with others, and is therefore the means by which we gauge our place in the world.... [W]e know ourselves through our gifts to others and theirs to us, and we come to that understanding most naturally through gifts of self-expression .. . .");
273. Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 CAL. L. REV. 125, 140, 137-47 (1993) ("[T]he consumption of cultural commodities can be, and often is, an active, creative practice.... There is ... a 'realm of living common culture' in which individuals and groups use cultural and industrial commodities creatively to do 'symbolic work' and thereby 'establish their presence, identity, and meaning.'" (footnote omitted)).
274. William Fisher, following popular-culture theorist John Fiske, refers to this brand of arguments as espousing the view of "semiotic democracy." Fisher, supra note 181, at 1217;
275. Fisher, Theories, supra note 124, at 193.
276. Most scholarship in the vein of cultural democracy does not subscribe to a naïve notion of completely autonomous individuals making absolutely subjective choices. See, e.g., BENKLER, supra note 108, at 278-85 (critiquing the liberal conception of individual autonomy). Instead, it develops various versions of acknowledging the dialectic between individual identity and choice on the one hand, and their social construction on the other. See, e.g., id. (describing culture as creating conditions of autonomy in practical life).
277. E.g., Fisher, Reconstructing, supra note 124, at 1748-50.
278. See BENKLER, supra note 108, at 133-42.
279. See id. at 135.
280. See Fisher, Reconstructing, supra note 124, at 1752, 1751-52 ("[T]he more multifarious the life-styles and ideas ... in a society, the more each of its members must decide for herself what to think and how to act, thereby developing her own 'mental and moral faculties' and rendering the culture as a whole even more 'rich, diversified, and animating.'");
281. Fisher, Theories, supra note 124, at 192 ("Access to a broad range of intellectual products is. . . crucial to widespread attainment of two related conditions central to most conceptions of the good life-namely, self-determination and self-expression . .. .").
282. See BENKLER, supra note 108, at 299-300 ("[T]he emergence of a new folk culture and of a wider practice of active personal engagement in the telling and retelling of basic cultural themes and emerging concerns and attachments offers new avenues for freedom. It [also] makes culture more participatory . . . .").
283. See generally Shaffer Van Houweling, supra note 170 (exploring the distributive aspects of copyright law and its changing consequences).
284. 2 ARISTOTLE, Nicomachean Ethics, in THE COMPLETE WORKS OF ARISTOTLE V.2.1130bl, at 1784, 1989 (Bollingen Series No. 71, Jonathan Barnes ed., 1984) (Revised Oxford Translation) (describing kinds of particular justice, including that which is manifested in distributions divided among those who have a share in the constitution).
285. See MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY 4, 3-4, 21 (1983) ("In the matter of distributive justice, history displays a great variety of arrangements and ideologies.").
286. See Fisher, Reconstructing, supra note 124, at 1756-61 (surveying theories of distributive justice and concluding that only the "difference principle" and the "unequal effort" arguments are defensible);
287. Fisher, Theories, supra note 124, at 192-93 (sketching the foundations of an attractive intellectual culture that includes a "[c]ornucopia of [information and [i]deas" and a "[r]ich [a]rtistic [t]radition").
288. See BENKLER, supra note 108, at 13-15 (discussing the importance of access to information for economic opportunity and human development);
289. Shaffer Van Houweling, supra note 170, at 1539-50 (discussing the ways in which copyright laws facilitate the distribution of expressive opportunities).
290. Cultural-democracy theories of intellectual property are not unique in facing such grave difficulties. AU major justifications of intellectual property suffer from serious defects and shortcomings. The main difference is that the defects of some of the other theories are either less readily apparent or more commonly concealed and overlooked. See Fisher, Theories, supra note 124, at 194 (noting that social-planning arguments are frequently criticized while economic arguments such as utilitarianism and the labor-desert approach have enjoyed "an aura of neutrality, objectivity, and. . .determinacy").
291. See, e.g., Fisher, Reconstructing, supra note 124, at 1746 (noting that utilitarian arguments are incorporated into his utopian analysis).
292. Fisher, Theories, supra note 124, at 192.
293. See, e.g., Netanel, supra note 57, at 344-46 (describing the market's influence on the democratic character of a civil society).
294. See id. at 346 (arguing that the market underwrites opportunities for democratic citizenship by promoting material well-being and supporting a degree of individual choice).
295. See id. at 288 ("[Copyright... is in, but not entirely of, the market.");
296. id. at 341 ("[T]he democratic paradigm aims to reinvigorate copyright's role in the 'preservation of a free Constitution.'").
297. See, e.g., Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Expression, 53 VAND. L. REV. 1879, 1883-84 (2000) (describing how the competitive media market creates a wealth disparity and serves entrenched commercial interests).
298. Bush, supra note 1, at 103.
299. See, e.g., supra notes 114-17 and accompanying text (discussing the Library of Congress's American Memory Project).
300. As mentioned before, to be truly equalizing, proliferation of digital libraries will have to be accompanied by measures that will ensure broad segments of society proper access to the basic resources needed in order to use such libraries, including computers and Internet connectivity.
301. Letter from James Madison to W.T. Barry (Aug. 4, 1822), in 9 THE WRITINGS OF JAMES MADISON 103,103 (Gaillard Hunt ed., 1910).
302. See, e.g., Netanel, supra note 202, at 1900 ("AU authorship builds upon preexisting expression.").
303. See JAMES BOYLE, SHAMANS, SOFTWARE, AND SPLEENS: LAW AND THE CONSTRUCTION OF THE INFORMATION SOCIETY 51-60 (1996) (chronicling and critiquing the invention of the "authorship" concept).
304. Billington, supra note 110, at 46.
305. See Balkin, supra note 170, at 5 ("In a democratic culture people are free to appropriate elements of culture that lay to hand, criticize them, build upon them, and create something new . . . .").
306. See, e.g., id. at 10-11 (referring to the strategy of "glomming on");
307. Coombe, supra note 170, at 1861-64 (discussing "appropriation" and "recoding");
308. Rochelle Cooper Dreyfuss, Expressive Genericity: Trademark as Language in the Pepsi Generation, 65 NOTRE DAME L. REV. 397, 405, 405-06 (1990) (expressing concern over the restriction on "the public's ability to evoke the expressive dimension" of trademarks that would ensue from allowing corporate trademark owners too much control over the use of their marks).
309. There is an elaborate and rich universe of Star Wars fan films. Lucasfilm has a complex relationship to this phenomenon: cultivating some fan creation by using carrots, such as the Star Wars Fan Film Award, and threatening others through the stick of copyright lawsuits. One of the earliest and most successful films in this vein is TROOPS by Kevin Rubio. The 1997 film is a parody of the television show Cops set in the Star Wars universe. TROOPS (Kevin Rubio 1997), available at http://www.theforce.net/fanfilms/shortfilms/ troops.
310. For example, consider the films submitted to the Moving Image Contest conducted by the Center for the Study of the Public Domain at Duke Law School. The contest rules asked participants to create short films demonstrating some of the tensions between art and intellectual property law. See Duke Law School, Moving Image Contest, http://www.law.duke.edu/cspd/contest (describing contest rules with links to finalists and winners).
311. See Calvin Johnson, Really Cool Stuff: Digital Searches in the Constitutional Period (July 25, 2004) (unpublished manuscript), available at http://www.utexas.edu/law/faculty/calvinjohnson/Digitalsearch.pdf. To be sure, most documents in archives on this topic are relatively unburdened by copyright concerns. For other collections, however, dealing with topics and materials from the twentieth century, most secondary and primary materials would be under the copyright cloud and would involve the problems discussed here.
312. See supra subsection 11(B)(2)(a).
313. See supra note 154 and accompanying text.
314. See supra notes 157-65 and accompanying text.
315. See supra text accompanying note 154.
316. See supra subsection 11(B)(3)(b).
317. See supra text accompanying notes 91-117.
318. See 17 U.S.C. § 107 (2000) (establishing the fair use limitation on exclusive rights).
319. The four, nonexhaustive factors that a court is guided to consider when making a fair use decision are: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect of the use on the potential market for or the value of the copyrighted work. See 17 U.S.C. § 107 (describing the factors).
320. 17 U.S.C. § 107(1). For a proposal in this spirit, see Mattioli, supra note 10, at 38-40 (proposing an amendment of 17 U.S.C. § 107(1) to include opt-out provisions as a mitigating fair use factor).
321. It is generally acknowledged that the four statutory fair use factors are not exhaustive and that courts are allowed to consider other relevant facts and circumstances when determining a fair use question. See Campbell v. Acuff-Rose Music Inc., 510 U.S. 569, 577 (1994) (holding that 17 U.S.C. §107 restates the judicial doctrine of fair use and does not change or narrow the common law tradition of fair use adjudication); Castle Rock Entm't, Inc. v. Carol Publ'g Group, 150 F.3d 132, 141 (2d Cir. 1998) ("The fair use examples provided in §107 are 'illustrative and limitative' and 'provide only general guidance about the sorts of copying that courts and Congress most commonly had found to be fair uses.'" (quoting Campbell, 510 U.S. at 577-78));
322. 4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT §13.05[A] (2006) [hereinafter NIMMER ON COPYRIGHT] ("[T]he factors contained in Section 107 are merely by way of example, and are not an exhaustive enumeration." (citation omitted)).
323. See supra subsection 11(B)(2)(a).
324. See supra text accompanying note 154.
325. See supra text accompanying notes 203-06.
326. In order to fit the normative analysis that made the commercial character issue relevant in the first place, the specific meaning given to the term "commercial" in our context would have to be narrower than the expansive interpretations of some courts. See John Tehranian, Et Tu, Fair Use? The Triumph of Natural-Law Copyright, 38 U.C. DAVIS L. REV. 465, 502-03 (2005) (discussing and criticizing the broad definition of "commercial use" in two Ninth Circuit cases).
327. See 17 U.S.C. § 107(1) (2000) (defining the fair use factor).
328. The fourth fair use factor is defined as "the effect of the use upon the potential market for or value of the copyrighted work." 17 U.S.C. § 107(4).
329. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994) ("[F]air use is an affirmative defense...."); NIMMER ON COPYRIGHT, supra note 224, § 13.05 (explaining the reservation that "this writer, speaking only for himself, is of the opinion that [fair use] is better viewed as a right granted by the Copyright Act of 1976"). Some courts went further and placed the burden of proof in respect to fair use on the defendant in the preliminary injunction stage. See A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 n.3 (9th Cir. 2001) ("[The] 'defendant bears the burden of proving . . . affirmative defenses.'" (citing A&M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896, 912 (N.D. Cal. 2000))).
330. See Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1260 n.3 (11th Cir. 2001) ("I believe that fair use should be considered an affirmative right under the 1976 Act, rather than merely an affirmative defense .. . ."); Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1542 n.22 (11th Cir. 1996) ("[I]t is clear that the burden of proving fair use is always on the putative infringer."); Glynn S. Lunney, Jr., Fair Use and Market Failure: Sony Revisited, 82 B.U. L. REV. 975, 989 (2002) ("[FJn Campbell, the Court declared that '[s]ince fair use is an affirmative defense,' the burden of proving fair use rests on the defendant seeking its protection. In allocating the burden in this manner, Justice Souter failed even to mention Sony's contrary resolution of the issue." (footnote omitted) (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994))).
331. See Michael W. Carroll, Fixing Fair Use, 85 N.C. L. REV. (forthcoming May 2007) (manuscript at 4), available at http://ssrn.com/abstract=945194 ("While the [fair use] doctrine's attention to context has many salutary attributes, it is so case-specific that it offers precious little guidance about its scope .. . .");
332. Fisher, Reconstructing, supra note 124, at 1693-94 (discussing the harmful effects of uncertainty in the fair use doctrine on university education and contemporary moral and political discourse);
333. Pierre N. Levai, Toward a Fair Use Standard, 103 HARV. L. REV. 1105, 1105-07 (1990) (commenting from a judicial perspective on the pervasively unguided and inconsistent nature of applying the fair use doctrine);
334. Jessica Litman, Reforming Information Law in Copyright's Image, 22 U. DAYTON L. REV. 587, 612 (1997) (noting how engaging in "case-by-case analysis" in fair use cases leads to unpredictability, creating a "troublesome safe harbor for First Amendment rights");
335. John Tehranian, Whither Copyright? Transformative Use, Free Speech, and an Intermediate Liability Proposal, 2005 BYU L. REV. 1201, 1215, 1215-16 (pointing out how the fair use doctrine has led to "[w]ildly disparate outcomes on similar fact patterns");
336. Rebecca Tushnet, Copyright as a Model for Free Speech Law: What Copyright Has in Common with AntiPornography Laws, Campaign Finance Reform, and Telecommunication Regulation, 42 B.C. L. REV. 1, 24 (2000) ("Inconsistencies are common in copyright cases ....").
337. See EDWARD SAMUELS, THE ILLUSTRATED STORY OF COPYRIGHT 190 (2000) (displaying the Bion Smalley cartoon).
338. See Campbell, 510 U.S. at 577 (purporting that the statute, like the doctrine it recognizes, calls for a case-by-case analysis); Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522, 1530 (S.D.N.Y. 1991) (explaining that the search for a coherent, predictable interpretation applicable to all cases remains elusive, and the common law proceeds on a case-by-case basis).
339. See Fisher, Reconstructing, supra note 124, at 1669-86 (discussing the various statutory factors supplied to provide guidance and the different applications in specific cases that arise from conflicting interpretations of those factors).
340. See David Nimmer, "Fairest of Them All" and Other Fairy Tales of Fair Use, 66 LAW & CONTEMP. PROBS., Winter-Spring 2003, at 263, 281 ("Courts tend first to make a judgment that the ultimate disposition is fair use or unfair use, and then align the four factors to fit that result as best they can.").
341. For example, all three major fair use cases that arrived to the Supreme Court were overturned at each level of review, and two of these Supreme Court decisions also involved strong dissenting opinions. See Campbell, 510 U.S. at 572; Harper & Row, Publishers, Inc. v. Nat'l Enters., 471 U.S. 539, 542, 579-605 (1985); Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 420, 421, 457-500 (1984).
342. For other reversals and split decisions, see Leval, supra note 233, at 1106-07 nn.9-10.
343. One recent example is Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828 (CD. Cal. 2006), aff'd in part, rev'd in part sub nom. Perfect 10, Inc. v. Amazon.com, Inc., No. 06-55405, 2007 U.S. App. LEXIS 11420 (9th Cir. May 16, 2007), where a federal district court in California found that thumbnail versions of copyrighted images displayed by an image search engine were infringing. Id. The court reached that decision despite the fact that the Ninth Circuit found in an earlier decision that search engine thumbnails constituted fair use. See Kelly v. Arriba Soft Corp., 336 F.3d 811, 815 (9th Cir. 2003). The district court acknowledged the relevant precedent but distinguished the case before it on two grounds: (1) the defendant, through its banner ad program, had a commercial relationship with a few of the Web sites displaying infringing full-size copies of the copyrighted images and (2) there was evidence of an emerging licensing market of thumbnail images for cell phone use. Perfect 10, 416 F. Supp. 2d at 847, 851. Whether the district court conclusion was correct is debatable. The important point here, however, is the very narrow factual distinctions on the basis of which it distinguished with no hesitation a superior-court precedent exactly on point.
344. See, e.g., Michael J. Madison, A Pattern-Oriented Approach to Fair Use, 45 WM. & MARY L. REV. 1525, 1623 (2004) ("Decisions regarding whether any given unauthorized 'use' of a copyrighted work is 'fair' under § 107 should be judged by whether that 'use' is undertaken in the context of a recognized social or cultural pattern, and the four statutory fair use factors should be interpreted and applied as part of an overall pattern-oriented framework.");
345. Michael J. Madison, Rewriting Fair Use and the Future of Copyright Reform, 23 CARDOZO ARTS & ENT. L.J. 391, 416 (2005) ("[W]e (creators, lawyers, consumers, and courts) both should and can find ways to manage a doctrine of fair use that is both more robust and more structured than the current appeal to case-by-case equity.").
346. H.R. REP. NO. 94-1476, at 68-70 (1976), as reprinted in 1976 U.S.C.C.A.N. 5659, 5681-83 (discussing permissible classroom uses for copyrighted materials). The Guidelines for Classroom Copying have been criticized as creating a chilling effect due to their transformation from an intended minimum to a de facto maximum of allowed fair use.
347. See, e.g., Ann Bartow, Educational Fair Use in Copyright: Reclaiming the Right to Photocopy Freely, 60 U. PITT. L. REV. 149, 162-63 (1998) (noting that under the analysis used by the courts, teachers cannot be confident that any copying beyond what is permissible within the Guidelines will be deemed fair use);
348. Gregory K. Klingsporn, The Conference on Fair Use (CONFU) and the Future of Fair Use Guidelines, 23 COLUM.-VLA J.L. & ARTS 101, 108 (1999) (asserting that some educational institutions have transformed the Guidelines from their intended use as a suggested minimum to a de facto maximum allowed use).
349. See FISHER & MCGEVERAN, supra note 152, at 103-06 (discussing educator-defined "best practice statements" and noting that such statements can both provide practical assistance in determining whether a particular desired use qualifies as fair use, as well as serve as the nucleus of a set of customary practices that over time can help guide courts in determining what types of uses are generally accepted as fair within that field). A recent example of an effort to develop a functioning best practices statement is that of Professor Peter Jaszi and the Center for Social Media in the field of documentary films. Fair Use and Free Speech Resources-Center for Social Media at American University, http://www.centerforsocialmedia.org/resources/fair_use.
350. See 17 U.S.C. § 512(c) (2000) (providing that a service provider will not be liable for monetary relief for having infringing material on its system or network unless the provider fails to remove upon notice).
351. The "notice and take down" provisions stipulate the safe haven upon maintaining a proper agent for purposes of notices from copyright owners and prompt compliance upon the reception of such a notice. 17 U.S.C. §§ 512(c)(I)(A)(iii), 512(c)(1)(C), 512(c)(2)-(3).
352. See supra text accompanying notes 235-39.
353. The literature on the jurisprudential rule-standard distinction is immense. See, e.g., MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 15-63 (1987) (engaging other works on rules and standards); FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE 7-8 (1991) (examining the logic behind norms and regulative rules);
354. Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE LJ. 557, 557 (1992) (offering an economic comparison of rules and standards);
355. Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1776-78 (1976) (correlating the preference for rules to "individualist" views on substantive private law issues, and the preference for standards to more "altruistic" views);
356. Piers Schlag, Rules and Standards, 33 UCLA L. REV. 379, 380-90 (1985) (arguing that the rules-versus-standards arguments are usually identical in form regardless of the substance of the issue and defining the forms of such rules-versus-standards arguments).
357. The more numerous the items used, the more likely it is that an opt-out rule is preferable. See supra subsection 11(B)(2)(a).
358. See supra subsection 11(B)(2)(a).
359. See supra subsection 11(B)(2)(a).
360. See supra text accompanying notes 146-53, 220.
361. See supra subsection 11(B)(2)(a).
362. For the problem of an overbroad definition of "commercial use," see supra note 228.
363. See supra subsection 11(B)(2)(a).
364. See James J. White, Reforming Article 9 Priorities in Light of Old Ignorance and New Filing Rules, 79 MINN. L. REV. 529, 533 n.3 (1995) (discussing how Norway's central register for security interests facilitates "quick, direct access" to "reliable and updated information").
365. Note that the register would be most effective in regard to works that are easily identifiable by convention-based textual metadata. Thus, for example, a digital search by anyone familiar with the title or author of a book would quickly bear fruit if the database contains these two items of metadata about the particular book. It would be a more complicated task in regard to an image or sound recording whose registration may not contain such exact and conventional metadata. Even in those more complicated cases, however, digital searches of a central database may be far from useless. Methods for searching for and identifying information such as a known image or sound, with no reference to metadata, are constantly being developed and perfected. It seems feasible that in the near future one would be able to search effectively for a particular image or sound recording in a database that contains hash values representing actual informational items rather than metadata. A hash value can be thought of as a unique fingerprint that represents an informational item. A hash value is created by an algorithm called a hash function. Given a database of hash values and access to the hash function used to create it, it is possible to search effectively and retrieve data such as sound and image with no reference to metadata. See LESK, supra note 81, at 44-48, 100-07 (explaining the method of hash coding and examining different technological innovations through which multimedia-pictures, sounds, etc.-are indexed and searched without the use of conventional textual metadata). The availability of reliable search-and-retrieval systems of this kind at reasonable cost seems to be close at hand. Thus for example, private enterprises like Shazam.com already offer consumers song recognition services based on such technology.
366. See Shazam - The Amazing Music Discovery Engine, http://www.shazam.com.
367. Software agents are computer programs that facilitate user choice and action. Among other things, software agents can be used to retrieve information and make decisions according to criteria predetermined by the user. See Christopher Fry et al., Static and Dynamic Semantics of the Web, in SPINNING THE SEMANTIC WEB: BRINGING THE WORLD WIDE WEB TO ITS FULL POTENTIAL 377, 382, 382-83 (Dieter Fensel et al. eds., 2003) (discussing intelligent Web agents who "track user interests, explore the Web proactively, learn through interacting with the user, provide personalized data and services, and much more");
368. Tim Berners-Lee, James Hendler & Ora Lassila, The Semantic Web, SCI. AM., May 2001, at 35, 36 ("[S]oftware agents roaming from page to page can readily carry out sophisticated tasks for users.").
369. See SCHAUER, supra note 246, at 31-34 (discussing the manner in which the factual predicate of a rule is often over- or underinclusive from the perspective of the justification of the rule);
370. Kennedy, supra note 246, at 1695 ("The use of rules, as opposed to standards, to deter immoral or antisocial conduct means that sometimes perfectly innocent behavior will be punished, and that sometimes plainly guilty behavior will escape sanction. These costs of mechanical over-and underinclusion are the price of avoiding the potential arbitrariness and uncertainty of a standard.").
371. For a refined version of this point and reservations, see Kaplow, supra note 246, at 586-96 (analyzing rules-with their common conception as over- and underinclusive-versus standards through factors such as when the law should be applied (ex post versus ex ante), the content and complexity of the rule or standard, and the frequency of the targeted behavior).
372. Rules are preferable when applications are numerous because rules typically have high promulgation cost and low application cost, while standards have low promulgation cost and high application cost. See Kaplow, supra note 246, at 563, 579-86 (discussing the need for increased effort in determining the content of widely applicable rules and observing that such increased effort will lead individuals to expend less on legal advice compared to expenditures on legal advice where standards must be interpreted).
373. Heterogeneous fact patterns undercut the advantages of rules because in such cases seemingly numerous applications are really aggregates of subcategories of applications, each containing relatively few cases and requiring different arrangements. Under such circumstances the value of a detailed ex ante resolution by a rule is limited. See Colin S. Diver, The Optimal Precision of Administrative Rules, 93 YALE L.J. 65, 73-75 (1983) (noting that the costs of applying rules where there are a large volume of disputes often push the transparency of such rules to an extreme-especially where enforcement depends on large, decentralized enforcement staffs-and that such increased transparency often results in misapplication errors);
374. Kaplow, supra note 246, at 563-64 (contrasting the application of rules in situations of recurring fact scenarios with more heterogeneous behavior).
375. See Diver, supra note 259, at 79 (examining similar difficulties in formulating licensing standards).
376. See Carroll, supra note 233 (manuscript at 39-44) (proposing a Fair Use Board that would make ex ante fair use rulings). There is, of course, no conflict between fair use administrative exemptions and opt-out ones. In fact the same institutional body could carry out both functions.
377. See Joseph P. Liu, Regulatory Copyright, 83 N.C. L. REV. 87, 140 (2004) (positing that among other things, taking the modern regulatory approach to copyright seriously suggests granting greater rulemaking authority in that arena to the Copyright Office or another government entity). The advantages of the administrative scheme detailed below correspond to some of the major reasons Liu identifies for the general shift toward regulatory copyright. Liu mentions the increased complexity and diversity of the social and economic context governed by copyright and the increasing value of relevant markets, which justifies the cost of more detailed and context-attuned arrangements. Id. at 129-30;
378. see also WILLIAM FISHER III, PROMISES TO KEEP: TECHNOLOGY, LAW, AND THE FUTURE OF ENTERTAINMENT 184-86 (2004) (observing that the entertainment industry, already regulated, shows characteristics that make it amenable to further regulatory initiatives in copyright). As explained below, one of the major advantages of an administrative-safe-haven scheme is the ability to optimize the solution according to heterogeneous and complex fact patterns.
379. See generally, 1 KENNETH CULP DAVIS & RICHARD J. PIERCE JR., ADMINISTRATIVE LAW TREATISE 7-14 (3d ed. 1994) (narrating the development of administrative law in America).
380. Michael Caroll makes the same point about his proposed administrative fair use scheme. He notes that his proposal would make it possible for the law to "have its context-sensitive standards and use them too by coupling standards with an advisory opinion mechanism that provides ex ante certainty." Carroll, supra note 233 (manuscript at 4).
381. Liu mentions certainty- and context-tailored arrangements as two of the main benefits of "regulatory copyright." Liu, supra note 262, at 133-34. He also calls for more flexible statutory schemes that allow administrative agency involvement. Id. at 138-39, 147-61.
382. See id. at 138 (suggesting that the Copyright Office "lacks the economic and technological expertise that would make it an even more effective source for informed copyright policy").
383. See id. at 135 (describing how detailed statutes force industry participants to wade through complex provisions).
384. The term "capture" is used in this context to describe a situation in which a regulating agency comes to favor and serve the interests of the entities it is supposed to regulate. See, e.g., RICHARD J. PIERCE ET AL., ADMINISTRATIVE LAW AND PROCESS 18-19 (4th ed. 2004) (explaining why capture occurs).
385. On the role of cultural and ideological biases in distorting the administrative process, see JERRY L. MASHAW ET AL., ADMINISTRATIVE LAW: THE AMERICAN PUBLIC LAW SYSTEM CASES AND MATERIALS 45 (5th ed. 2003), and sources cited therein.
386. A recent decision reached a similar outcome in regard to § 512's safe havens even in the absence of an explicit statutory stipulation. See CoStar Group, Inc. v. Loopnet, Inc., 373 F.3d 544, 552-55 (4th Cir. 2004) (exempting an online service provider hosting protected materials from copyright liability on the basis of general copyright principles, irrespective of its eligibility for the statutory safe haven).
387. See supra text accompanying notes 231-39.