Lawful personal use

Texas Law Review

Volumn 85, Issue 7, 2007, Pages 1871-1920

  Litman, Jessica ^a  

^a UNIVERSITY OF MICHIGAN   (United States)

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EID: 34547807549     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (322)

1. Mitch Bainwol, Chairman and CEO, Recording Indus. Ass'n of Am., State of the Union Panel Discussion at the Future of Music Coalition Fifth Annual Policy Summit (Sept. 12, 2005), available at http://www.futureofmusic.org/audio/ summit05/panel04.stateofunion.mp3.
2. Jefferson Graham, RIAA Chief Says Illegal Song-Sharing "Contained," USA TODAY, June 13, 2006, at Bl, available at http://www.usatoday.com/tech/products/services/2006-06-12- riaa _x.htm; Electronic Frontier Foundation, How to Not Get Sued for File Sharing, http://www.eff.org/ IP/P2P/howto-notgetsued.php.
3. Professor Marci Hamilton coined the phrase "free use zone" to describe these uses. See Marci A. Hamilton, The TRIPS Agreement: Imperialistic, Outdated, and Overprotective, 29 VAND. J. TRANSNAT'L L. 613, 615 (1996) ("While the corporeal universe has permitted Western societies to receive and copy large numbers of copyrighted works for free ... the on-line era raises the possibility that the publishing industry can track every minuscule use of a work and thereby turn the free use zone into a new opportunity for profit.").
4. Two examples of the many countries with statutory personal use provisions are Canada and Norway. See, e.g., BMG Canada Inc. v. Doe, [2004] F.C. 488 (Fed. Ct.) (applying the Canadian Copyright Act to determine "downloading a song for personal use does not amount to infringement");
5. Tarja Koskinen-Olsson, The Notion of Private Copying in Nordic Copyright Legislation in the Light of European Developments During Recent Years, 49 J. COPYRIGHT SOC'Y U.S.A. 1003, 1003 (2002) ("Copying for private use has traditionally been free in all Nordic copyright legislations.").
6. See NAT'L RESEARCH COUNCIL, THE DIGITAL DILEMMA: INTELLECTUAL PROPERTY IN THE INFORMATION AGE 129 (2000) [hereinafter THE DIGITAL DILEMMA] ("The extremes of the positions on this issue are well established.... Some rights holders... believe that all.. . unauthorized reproduction of their works, whether private or public, commercial or noncommercial, is an infringement. Many members of the general public . . . believe that all. . . private, noncommercial copying of copyrighted works is lawful."). Compare, e.g., Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE LJ. 283, 300 (1996) ("[C]ourts have generally declined to find personal copying as infringing."), with Jane C. Ginsburg, From Having Copies to Experiencing Works: The Development of an Access Right in U.S. Copyright Law, 50 J. COPYRIGHT SOC'Y U.S.A. 113, 120 (2003) ("U.S. and international copyright law have increasingly recognized that the author's right to authorize, or at least to be compensated for, the making of copies, extends ... to end-users who make individual copies for private consumption.").
7. See Jessica Litman, War Stories, 20 CARDOZO ARTS & ENT. L.J. 337, 338, 338-50 (2002) [hereinafter Litman, War Stories] ("[T]he question whether individuals are liable for copyright infringement when they make unauthorized uses of copyrighted woTks has no clear answer.").
8. See OFFICE OF TECH. ASSESSMENT, COPYRIGHT AND HOME COPYING: TECHNOLOGY CHALLENGES THE LAW 5, 5-14 (1989) ("The problem of private use arises because its legal status is ambiguous.");
9. THE DIGITAL DILEMMA, supra note 5, at 135, 129-36 ("This report cannot resolve the debate over private use copying.");
10. Alan Latman, Fair Use of Copyrighted Works, in 2 STUDIES ON COPYRIGHT 781, 789-90 (Copyright Soc'y of the U.S. ed., 1963);
11. Borge Varmer, Photoduplication of Copyrighted Material by Libraries, in 2 STUDIES ON COPYRIGHT, supra, at 813, 817 ("It may be that copying for one's own private use ... is sanctioned by custom ....").
12. E.g., Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as amended in scattered sections of 17 U.S.C. (2000)); No Electronic Theft (NET) Act, Pub. L. No. 105-147, § 2(a)-(b), 111 Stat. 2678, 2678 (1997) (codified at 17 U.S.C. §§ 101, 506); Computer Software Rental Amendments Act of 1990, Pub. L. No. 101-650, §§ 801-05, 104 Stat. 5089, 5134-37 (codified at 17 U.S.C. § 109); Record Rental Amendment of 1984, Pub. L. No. 98-450, § 2, 98 Stat. 1727, 1727 (codified at 17 U.S.C. § 109).
13. See, e.g., Sonia K. Katyal, Privacy vs. Piracy, 9 INT'L J. COMM. L. & POL'Y (SPECIAL ISSUE) 1, 7 (2004-2005) ("[P]rivate entities have successfully monitored transmissions in cyberspace to control uses of their copyrighted materials.");
14. Jessica Litman, Reforming Information Law in Copyright's Image, 22 U. DAYTON L. REV. 587, 606, 602-13 (1997) [hereinafter Litman, Reforming Information Law] ("[T]he Internet has made it simpler to prevent, detect and avenge unauthorized copying.").
15. See, e.g., Ginsburg, supra note 5, at 114, 113-14 ("[D]igital media and communications made it even easier for consumers to create physical copies of any kind of work ....").
16. See, e.g., Am. Library Ass'n v. FCC, 406 F.3d 689, 691, 693-96 (D.C. Cir. 2005) (describing the entertainment industries' "broadcast flag" campaign).
17. See THE DIGITAL DILEMMA, supra note 5, at 129, 129-45 ("[T]he risk to rights holders from unbridled private copying is especially acute when the information is in digital form and can be copied without loss of quality and disseminated by digital networks.");
18. Netanel, supra note 5, at 299, 299-301 ("With readily available consumer electronics and digital technology... individual consumers are now able to make perfect copies of many cultural works at virtually no cost.").
19. See, e.g, Universal City Studios, Inc. v. Corley, 273 F.3d 429, 436, 436-44 (2d Cir. 2001) ("The movie studios were reluctant to release movies in digital form until they were confident they had in place adequate safeguards against piracy of their copyrighted movies.");
20. see also Electronic Frontier Foundation, EFF: The Battle for Your Digital Media Devices, http://www.eff.org/IP/ fairuse/ ("Major entertainment companies are locking up the audio and video content you own and taking away your rights."); Electronic Frontier Foundation, EFF: Endangered Gizmos!, http://www.eff.org/endangered/ (illustrating new technologies that are threatened because of their copying ability).
21. See, e.g., Jane C. Ginsburg, "The Exclusive Right to Their Writings": Copyright and Control in the Digital Age, 54 ME. L. REV. 195, 201, 201-02 (2002) [hereinafter Ginsburg, Copyright and Control] ("[T]he . . . statutory and caselaw history until 1976 often elevated claims for enhanced availability... over copyright owner interest.... The 1976 Act, however, implements a vision of 'exclusive rights' to which control is integral." (footnote omitted));
22. Ginsburg, supra note 5, at 124 ("As we move to an access-based world of distribution of copyrighted works, a copyright system that neglected access controls would make copyright illusory, and in the long run it would disserve consumers.");
23. see also U.S. PATENT AND TRADEMARK OFFICE, NATIONAL INFORMATION INFRASTRUCTURE TASK FORCE WORKING GROUP ON INTELLECTUAL PROPERTY: PUBLIC HEARING ON INTELLECTUAL PROPERTY ISSUES INVOLVED IN THE NATIONAL INFORMATION INFRASTRUCTURE INITIATIVE 40-50 (1993) (remarks of Bruce A. Lehman, Chair, Working Group on Intellectual Property), available at http://www.umich.edu/ -jdlitman/NOV18NII.TXT (suggesting that fair use may be unnecessary in an electronic environment).
24. See Jessica Litman, The Exclusive Right to Read, 13 CARDOZO ARTS & ENT. L.J. 29, 35 (1994) ("[T]he public believes that the copyright statute... does not reach private or non-commercial conduct.... Until recently ... the public's impression was not a bad approximation of the scope of copyright rights likely, in practice, to be enforced.");
25. Pamela Samuelson, Copyright and Freedom of Expression in Historical Perspective, 10 J. INTELL. PROP. L. 319, 326 (2003) ("For the most part, the law of copyright has regulated public and commercial uses of copyrighted works, not private and noncommercial uses.").
26. 464 U.S. 417 (1984).
27. See, e.g., Lewis Galoob Toys, Inc. v. Nintendo of Am., Inc., 964 F.2d 965, 970, 970-71 (9th Cir. 1992) ("Game Genie users are engaged in a non-profit activity. Their use of the Game Genie to create derivative works therefore is presumptively fair.");
28. Joel L. McKuin, Home Audio Taping of Copyrighted Works and the Audio Home Recording Act of 1992: A Critical Analysis, 16 HASTINGS COMM. & ENT. L.J. 311, 317, 317-21 (1994) ("The arguments for and against finding home taping a fair use will not be repeated at length since not only have such arguments been presented many times before, but also [the Audio Home Recording Act of 1992] makes the debate irrelevant by deeming noncommercial taping a noninfringing activity." (footnote omitted)).
29. See Litman, War Stories, supra note 6, at 342-50 (tracing the evolution in language used to describe contested uses of copyrighted works).
30. Transcript of Oral Argument at 11-12, Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) (No. 04-480), available at http://www.supremecourtus.gov/oral_ arguments/argument_transcripts/04-480.pdf.
31. See Jessica Litman, Copyright Legislation and Technological Change, 68 OR. L. REV. 275, 354, 348-54 (1989) [hereinafter Litman, Technological Change] ("[Members of Congress] have ... demonstrated little eagerness for grappling with the general problems that private use poses.").
32. See JESSICA LITMAN, DIGITAL COPYRIGHT 59-61, 122-45 (2006) [hereinafter LITMAN, DIGITAL COPYRIGHT] (reviewing the legislative history of the Audio Home Recording Act and the Digital Millennium Copyright Act);
33. Pamela Samuelson, The Generativity of Sony v. Universal: The Intellectual Property Legacy of Justice Stevens, 74 FORDHAM L. REV. 1831, 1841 (2006) ("[Sony] also argued that time-shift copying was a fair use and that Congress had intended to exempt private use home taping from radio or TV from claims of copyright infringement.").
34. See, e.g., 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, 1652-57 (1982) (analyzing home videotaping as a case of market failure);
35. L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 VAND. L. REV. 1, 40 (1987) ("A fair use doctrine intended to permit competitors to make reasonable use of a work is quite different from a fair use doctrine that makes a consumer's use of the work for ordinary purposes suspect.").
36. See Julie E. Cohen, Copyright and the Jurisprudence of Self-help, 13 BERKELEY TECH. L.J. 1089 (1998) (discussing users' rights to hack DRM);
37. Julie E. Cohen, A Right to Read Anonymously: A Closer Look at "Copyright Management" in Cyberspace, 28 CONN. L. REV. 981 (1996) [hereinafter Cohen, A Right to Read] (discussing right to read anonymously).
38. See Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 N.Y.U. L. REV. 354, 393 (1999) (suggesting a First Amendment basis for a user's right of access to the public domain);
39. Yochai Benkler, From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access, 52 FED. COMM. L.J. 561 (2000) (arguing that First Amendment interests require regulators to ensure broad public access to the tools for generating and disseminating expression);
40. Yochai Benkler, Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain, LAW & CONTEMP. PROBS., Winter-Spring 2003, at 173 (2003) (articulating First Amendment constraints on Congress's power to restrict individual rights to read and speak).
41. See Rebecca Tushnet, Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 YALE L.J. 535, 587 (2004) ("Courts should recognize that various kinds of copying... promote free speech.... The point is not to denigrate fair use, but to recognize that many kinds of uses of copyrighted material may be justified . . . .").
42. See generally Netanel, supra note 5 (analyzing conflicts between the First Amendment and copyright, and suggesting resolutions).
43. See, e.g., C. Edwin Baker, First Amendment Limits on Copyright, 55 VAND. L. REV. 891, 904 (2002) ("The expressive liberty protected by the First Amendment encompasses copying as a way of receiving or preserving personal access ... and distributing copies as a means of communicating to others what the distributor wants to communicate.");
44. Malla Pollack, The Democratic Public Domain: Reconnecting the First Amendment and the Original Progress Clause (A.K.A. Copyright and Patent Clause), 45 JURIMETRICS J. 23, 27 (2004) ("The Clause limits Congress, demonstrating that the base right is in the public, not in the government, the inventors, nor the writers.");
45. Jed Rubenfeld, The Freedom of Imagination: Copyright's Constitutionality, 112 YALE L.J. 1, 38 (2002) ("Because it protects the freedom of imagination, the First Amendment directly protects not only speakers, but readers, viewers, and listeners as well.");
46. Diane Leenheer Zimmerman, Is There a Right to Have Something to Say? One View of the Public Domain, 73 FORDHAM L. REV. 297, 326 (2004) ("Speech requires content to be meaningful. This includes some ability to acquire such content and certainly the privilege of using it.").
47. See L. Ray Patterson, Eldred v. Reno: An Example of the Law of Unintended Consequences, 8 J. INTELL. PROP. L. 223, 228 (2001) ("[T]he governing principle of both the First Amendment and the Copyright Clause is the right of public access to materials that enable the people to learn, for political purposes in some instances, and for personal education in others.");
48. Patterson, supra note 22, at 61 ("The copyright owner, by reason of the Copyright Act and the copyright clause, has not only no right to interfere, but a duty not to interfere with the consumer's use of a publicly disseminated work.");
49. see also Deborah Tussey, From Fan Sites to Filesharing: Personal Use in Cyberspace, 35 GA. L. REV. 1129, 1134 (2001) (arguing that the policies underlying the copyright and patent clause support the enactment of a personal use privilege).
50. See Joseph P. Liu, Copyright Law's Theory of the Consumer, 44 B.C. L. REV. 397, 398 (2003) ("After all, the overall purpose of the Copyright Act is not to reward authors for authors' sake, but to reward authors to benefit consumers and society more generally.");
51. Glynn S. Lunney, Jr., Fair Use and Market Failure: Sony Revisited, 82 B.U. L. REV. 975, 977 (2002) ("With the development and dissemination of digital technology, the importance of private copying and its legal status, whether fair or unfair under copyright law, has only increased.").
52. See Julie E. Cohen, The Place of the User in Copyright Law, 74 FORDHAM L. REV. 347, 347-48 (2005) ("Copyright doctrine, however, is characterized by the absence of the user.... [This] absence produces a domino effect that ripples through the structure of copyright law, shaping both its unquestioned rules and its thorniest dilemmas.");
53. Liu, supra note 29, at 398 ("[C]onsumer interests are quite a bit more complex than we ordinarily think.").
54. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).
55. See Jonathan Band, So What Does Inducement Mean?, COMPUTER & INTERNET L., Nov. 2005, at 1, 2 ("[T]his redefinition of contributory infringement.. . appears to run contrary to the Supreme Court's discussion of contributory infringement in Sony.").
56. Grokster, 545 U.S. at 934-40.
57. Id. at 937-39.
58. See Pornography, Technology and Process: Problems and Solutions on Peer-to-Peer Networks: Hearing Before the S. Comm. on the Judiciary, 108th Cong. (2003) (statement of Cary Sherman, President and General Counsel, Recording Industry Association of America), available at http://judiciary.senate.gov/hearing.cfm?id=902 ("[F]or copyright owners, the John Doe procedure is a lose-lose: they no longer have access to an expeditious procedure for identifying alleged infringers and they are faced with significantly greater administrative and monetary burdens associated with enforcing their rights under the law.").
59. See, e.g., Press Release, Recording Indus. Ass'n of Am., RIAA Launches New Initiatives Targeting Campus Music Theft (Feb. 28, 2007), available at http://www.riaa.com/news/newsletter/ 022807.asp ("The Recording Industry Association of America (RIAA), on behalf of the major record companies, today sent 400 pre-litigation settlement letters to 13 different universities. Each letter informs the school of a forthcoming copyright infringement lawsuit against one of its students or personnel.").
60. See, e.g., Justin Hughes, On the Logic of Suing One's Customers and the Dilemma of Infringement-Based Business Models, 22 CARDOZO ARTS & ENT. L.J. 725, 744, 747-50 (2005) (suggesting that the "John Doe" suits deter some file sharing and may, in addition, become a profit center for the recording industry).
61. See Jessica Litman, The Sony Paradox, 55 CASE W. RES. L. REV. 917, 958 (2005) [hereinafter Litman, Sony Paradox] ("[O]nIy one of the 8000 consumers sued so far for peer-to-peer file sharing by the recording industry has found the arguments in favor of personal copying sufficiently compelling to be worth the risk of taking the law suit to trial.").
62. See Brief of Amici Curiae Law Professors in Support of Respondents at 3, Grokster, 545 U.S. 913 (No. 04-480) ("[T]he right of private copying, which has existed (as a matter of legal realism) for years, may well be lost not through a fair and vigorously contested adversary process, but through silence.").
63. See Mitch Bainwol, CEO, Recording Indus. Ass'n of Am., Address at the Nat'l Ass'n of Recording Merchandisers Insights and Sounds Convention 2005, Building a Brighter Future: Making and Selling Great Music, at 58 (Aug. 12, 2005), http://www.narm.com/2005Convention/ Bainwol.pdf ("Burning and Ripping Are Becoming A Greater Threat Than P2P"). The copy-protection software has not been entirely benign. In 2005, Sony BMG released a number of recordings on CDs that incorporated copy-protection technology. The CDs played normally in a conventional CD player, but, when inserted into a CD-ROM drive of a computer running the Windows operating system, the CDs automatically and secretly installed software on the user's computer. Press Release, FTC, Sony BMG Settles FTC Charges (Jan. 30, 2007), available at http://www.ftc.gov/ opa/2007/01/sony.htm. The Federal Trade Commission charged Sony BMG with violating federal law, claiming that the software "Posed Security Risks, Limited CD Use, and Monitored Users' Listening Habits on their Computers, Without Consumer Consent." Id. Sony settled the charges in January of 2007. Id.
64. See Am. Library Ass'n v. FCC, 406 F.3d 689, 691 (D.C. Cir. 2005) ("[T]he Commission adopted 'broadcast flag' regulations, requiring that digital television receivers... include technology allowing them to recognize the broadcast flag."); Broadcast and Audio Flag: Hearing Before the S. Comm. on Commerce, Science, and Transportation, 109th Cong. 47 (2006), available at http://commerce.senate.gov/pdf/bainwol-012406.pdf (hearing on proposals for legislation directing the FCC to implement the broadcast flag);
65. Anne Broache, Senators Aim to Restrict Net, Satellite Radio Recording, CNET NEWS.COM, Jan. 16, 2007, http://news.com.com/2102- 1028_3-6149915.html ("[Proposed legislation] says that all audio services... would be obligated to implement 'reasonably available and economically reasonable' copy-protection technology aimed at preventing 'music theft' and restricting automatic recording."); Electronic Frontier Foundation, EFF: Broadcast Flag, http://www.eff.org/IP/broadcastflag/ ("[I]f the broadcast flag mandate is passed, Hollywood and federal bureaucrats will get a veto over innovative devices and legitimate uses of recorded programming. The mandate forces all future digital television (DTV) tuners to include 'content protection' (aka DRM) technologies.").
66. See The Audio and Video Flags: Can Content Protection and Technological Innovation Coexist?: Hearing Before the H. Subcomm. on Telecommunications and the Internet, 109th Cong. 40-70 (2006) (discussing the degree to which the proposed audio broadcast flag would impinge on listeners' control of their radios); id. at 71 (statement of Fritz Attaway, Executive Vice President and Special Policy Advisor, Motion Picture Association of America) ("Whether or not the [video broadcast] flag is reinstituted, the vast majority of digital TV channels received by the American public will be capable of protecting content against mass redistribution.") ;
67. The Analog Hole: Can Congress Protect Copyright and Promote Innovation?: Hearing Before the S. Comm. on the Judiciary, 109th Cong. (June 21, 2006) (statement of Dan Glickman, Chairman and CEO, Motion Picture Association of America), http://judiciary.senate.gov/hearing.cfm?id=1956 ("[W]e can, and must, implement basic technological measures ... to discourage what I call 'casual misuse' of our intellectual property.");
68. see also Platform Equality and Remedies for Rights Holders in Music Act of 2007, S. 256, 110th Cong. (requiring radios and audio recorders to include content protection technology).
69. See, e.g., Jessica Litman, The Public Domain, 39 EMORY L.J. 965, 980 (1990) [hereinafter Litman, Public Domain] ("[Nineteenth century c]ourts interpreted the scope of the copyright grant narrowly and continued to hold that what Congress did not grant to the author became common property upon publication of the work containing it.").
70. For some of my thoughts on those questions, see Jessica Litman, Sharing and Stealing, 37 HASTINGS COMM. & ENT. J.L. 1 (2004) [hereinafter Litman, Sharing].
71. See Hamilton, supra note 3, at 623 ("There has been a cushion of 'free use' surrounding the author's capacity to prohibit unauthorized or unpaid uses. Examples ... include: browsing among copyrighted books and magazines for sale in a bookstore, loaning a book to a friend, borrowing copyrighted works from public libraries, and visiting an art gallery or museum."); infra text accompanying notes 137-84.
72. U.S. CONST, art. I, § §, c1. 8.
73. See, e.g., 1 PAUL GOLDSTEIN, COPYRIGHT 5, 3-9 (1989) ("The constitutional clause empowering Congress to enact a copyright statute reflects the belief that property rights, properly limited, will serve the general public interest in an abounding national culture."); ROBERT GORMAN, COPYRIGHT LAW 1 (1991) ("The basic purpose of copyright is to enrich our society's wealth of cuitare and information.").
74. See, e.g., Mazer v. Stein, 347 U.S. 201, 219 (1954) ("The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors ...."); United States v. Paramount Pictures, 334 U.S. 131, 158 (1948) ("The copyright law, like the patent statutes, makes reward to the owner a secondary consideration.").
75. See LITMAN, DIGITAL COPYRIGHT, supra note 21, at 79-81 (describing the influence of the economic incentive model of intellectual property on copyright theory and scholarship).
76. See, e.g., L. RAY PATTERSON & STANLEY W. LINDBERG, THE NATURE OF COPYRIGHT: A LAW OF USERS' RIGHTS 3-4 (1991) (stating that copyright should be viewed "as a law for consumers as well as for creators and marketers");
77. Raymond Shih Ray Ku, The Creative Destruction of Copyright: Napster and the New Economics of Digital Technology, 69 U. CHI. L. REV. 263, 267 (2002) ("[C]yberspace and the economics of digital technology require the unbundling of the public's interests in the creation and distribution of digital works.");
78. Lunney, supra note 29, at 977 ("[I]ncreasing access to a work, even unauthorized access, represents a sufficient public interest to invoke the fair use doctrine.").
79. See, e.g., Cohen, supra note 30, at 348 ("I do not intend to argue that copyright is, as some have asserted, 'a law of users' rights.'" (citing PATTERSON & LINDBERG, supra note 50)). Copyright true believers have been even less receptive. For a strident and not entirely coherent argument that users have and should have no rights whatsoever under copyright laws,
80. see David R. Johnstone, Debunking Fair Use Rights and Copyduty Under U.S. Copyright Law, 52 J. COPYRIGHT SOC'Y U.S.A. 345, 357, 357-58 (2005) ("No 'Users ' Rights ' Exist (Explicitly or Implicitly)").
81. James Boyle had the insight that intellectual property laws created an information ecology. See James Boyle, A Politics of Intellectual Property: Environmentalism for the Net?, 47 DUKE L.J. 87, 110 (1997) ("In both environmental protection and intellectual property, the very structure of the decisionmaking process tends to produce a socially undesirable outcome.");
82. James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, LAW & CONTEMP. PROBS., Winter-Spring 2003, at 33, 70-74 (comparing copyright activism to the environmental movement); Symposium, Cultural Environmentalism at 10, LAW & CONTEMP. PROBS., Spring 2007 (collecting essays presented at a conference honoring Boyle's cultural environmentalism work).
83. See Litman, Public Domain, supra note 43, at 1018-19 (cataloguing the advantages for authors of a broad public domain).
84. See, e.g., LAWRENCE LESSIG, FREE CULTURE 29 (2004) ("Creators here and everywhere are always and at all times building upon the creativity that went before and that surrounds them now. ... No society, free or controlled, has ever demanded that every use be paid for...."); NEIL WEINSTOCK NETANEL, COPYRIGHT'S PARADOX (forthcoming 2008) (manuscript at 135-36, on file with author) (arguing that an expansive copyright law will tend to diminish the creation and dissemination of additional works and lead to a clustering in already popular genres).
85. I. Trotter Hardy, Copyright and "New-Use" Technologies, 23 NOVA L. REV. 657, 697 (1999) ("[T]he likelihood that authors given both a right and a market that permits them to demand royalties in some profitable amount, would instead refuse royalties in any amount, seems small-far less than the likelihood that they would happily receive them.").
86. See LESSIG, supra note 54, at 106 ("[T]he cost of complying with the law is impossibly high. Therefore, for the law-abiding sorts, a wealth of creativity is never made. And for that part that is made, if it doesn't follow the clearance rules, it doesn't get released.");
87. Lydia Pallas Loren, Untangling the Web of Music Copyrights, 53 CASE W. RES. L. REV. 673, 698 (2003) ("[A]s a result of the dual layers of copyrights and the divided rights granted to each owner, there are too many vested industry players for downstream users to be able to efficiently obtain the authorizations needed for downstream use of recorded music.");
88. Katie Dean, Copyright Reform to Free Orphans?, WIRED, Apr. 12, 2005, http://www.wired.com/news/culture/0,1284,67139,00.html (discussing problems with licensing "items still locked up under copyright but where the owners are unknown or impossible to locate").
89. E.g., R. Anthony Reese, Innocent Infringement in Copyright Law 20 (Jan. 7, 2007) (unpublished manuscript, on file with author); Tushnet, supra note 25, 541-44.
90. See, e.g., Sara K. Stadler, Copyright as Trade Regulation, 155 U. PA. L. REV. 899 (2007) (contrasting early U.S. copyright laws with the current statute).
91. See Wendy J. Gordon, An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory, 41 STAN. L. REV. 1343, 1397-1400 (1989) (reimagining copyright law from the vantage point of user privilege).
92. See Litman, Public Domain, supra note 43, at 967 ("This tendency can distort our understanding of the interaction between copyright law and authorship. Specifically, it can lead us to give short shrift to the public domain by failing to appreciate that the public domain is the law's primary safeguard of the raw material that makes authorship possible.").
93. See, e.g., White-Smith Music Publ'g Co. v. Apollo Co., 209 U.S. 1, 18 (1908) ("It may be true ... these perforated [piano] rolls ... enable[] the manufacturers thereof to enjoy the use of musical compositions for which they pay no value.... As the act of Congress now stands we believe it does not include these records as copies or publications of the copyrighted music ....").
94. Latman, supra note 7, at 783.
95. Act of May 31, 1790, ch. 15, 1 Stat. 124.
96. Act of Aug. 18, 1856, ch. 169, 11 Stat. 138.
97. Act of July 8, 1870, ch. 230, 16 Stat. 198.
98. Act of Jan. 6, 1897, ch. 4, § 4966, 29 Stat. 481, 481-82 (repealed 1909).
99. See ARTHUR R. MILLER & MICHAEL H. DAVID, INTELLECTUAL PROPERTY 326-27 (3d ed. 2000) (describing the "narrow view of copyright" applied by courts in the eighteenth and early nineteenth centuries); NETANEL, supra note 54 (manuscript at 46-47);
100. Edward Samuels, The IdeaExpression Dichotomy in Copyright Law, 56 TENN. L. REV. 321, 325-47 (1989) (surveying the development of copyright case law).
101. See Eldred v. Ashcroft, 537 U.S. 186 (2002) (upholding the Copyright Term Extension Act, in which Congress extended the terms of existing and future copyrights).
102. The late Ray Patterson, in an important article published two decades ago, articulated this distinction as the difference between using the copyright and using the work. See Patterson, supra note 22, at 11 ("The distinction between the work and the copyright of the work is made clear by the definition of copyright-a series of rights to which a given work is subject, for example, the right to print, reprint, publish, and vend the work.").
103. 23 F. Cas. 201 (C.C.E.D. Pa. 1853) (No. 13, 514).
104. Id.
105. Id. at 206.
106. EATON S. DRONE, A TREATISE ON THE LAW OF PROPERTY IN INTELLECTUAL PRODUCTIONS IN GREAT BRITAIN AND THE UNITED STATES 455 n.4 (1879).
107. See, e.g., Litman, Public Domain, supra note 43, at 980 (noting that Stowe's analysis influenced courts in subsequent cases to interpret copyright law narrowly);
108. Hannibal Travis, Pirates of the Information Infrastructure: Blackstonian Copyright and the First Amendment, 15 BERKELEY TECH. L.J. 777, 824 (2000) (characterizing Stowe as evidence of how far copyright protection has progressed beyond the narrow prohibition extending only to literal copies);
109. Naomi Abe Voegtli, Rethinking Derivative Rights, 63 BROOK. L. REV. 1213, 1233 (1997) (citing Stowe as epitomizing copyright law's narrow protection).
110. Stowe, 23 F. Cas. at 206.
111. See also Baker v. Selden, 101 U.S. 99, 103 (1880) ("The very object of publishing a book on science or the useful arts is to communicate to the world the useful knowledge which it contains. But this object would be frustrated if the knowledge could not be used without incurring the guilt of piracy of the book.");
112. Pamela Samuelson, Why Copyright Law Excludes Systems and Processes from the Scope of Its Protection, 85 TEXAS L. REV. 1921, 1933 (2007) ("Baker was concerned not just with freedoms for follow-on authors, but also with freedoms for readers and users of copyrighted works, especially in the freedom to extract and employ the useful know-how from such works ....").
113. In Fortnightly v. United Artists Television, Inc., 392 U.S. 390 (1968), a motion picture studio that had licensed its programming to television for broadcast sued the operator of cable television systems that had, without a license, transmitted the programming to customers in nearby areas who had poor television reception because of the hilly terrain. The studio claimed that Fortnightly was performing its motion pictures for profit. Id. at 400-01. The Supreme Court disagreed. Id. at 393. The Court continued: Essentially, a CATV system no more than enhances the viewer's capacity to receive the broadcaster's signals; it provides a well-located antenna with an efficient connection to the viewer's television set. It is true that a CATV system plays an "active" role in making reception possible in a given area, but so do ordinary television sets and antennas. CATV equipment is powerful and sophisticated, but the basic function the equipment serves is little different from that served by the equipment generally furnished by a television viewer. If an individual erected an antenna on a hill, strung a cable to his house, and installed the necessary amplifying equipment, he would not be "performing" the programs he received on his television set. The result would be no different if several people combined to erect a cooperative antenna for the same purpose. The only difference in the case of CATV is that the antenna system is erected and owned not by its users but by an entrepreneur.
114. Id. at 399-400 (footnotes omitted). Six years later, the Court was invited to reexamine the line between broadcaster and viewer in a copyright
115. See Teleprompter Corp. v. CBS, 415 U.S. 394 (1974). The Court refused to find copyright liability. Id.
116. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975).
117. Id. at 162. The Court explained:
118. To hold in this case that the respondent Aiken "performed" the petitioners' copyrighted works would. .. result in a regime of copyright law that would be both wholly unenforceable and highly inequitable.
119. The practical unenforceability of a ruling that all of those in Aiken's position are copyright infringers is self-evident. One has only to consider the countless business establishments in this country with radio or television sets on their premises-bars, beauty shops, cafeterias, car washes, dentists' offices, and drive-ins-to realize the total futility of any evenhanded effort on the part of copyright holders to license even a substantial percentage of them. And a ruling that a radio listener "performs" every broadcast that he receives would be highly inequitable for two distinct reasons. First, a person in Aiken's position would have no sure way of protecting himself from liability for copyright infringement except by keeping his radio set turned off. For even if he secured a license from ASCAP, he would have no way of either foreseeing or controlling the broadcast of compositions whose copyright was held by someone else. Secondly, to hold that all in Aiken's position "performed" these musical compositions would be to authorize the sale of an untold number of licenses for what is basically a single public rendition of a copyrighted work. The exaction of such multiple tribute would go far beyond what is required for the economic protection of copyright owners, and would be wholly at odds with the balanced congressional purpose behind 17 U.S.C. §1(e): The main object to be desired in expanding copyright protection accorded to music has been to give to the composer an adequate return for the value of his composition, and it has been a serious and a difficult task to combine the protection of the composer with the protection of the public, and to so frame an act that it would accomplish the double purpose of securing to the composer an adequate return for all use made of his composition and at the same time prevent the formation of oppressive monopolies, which might be founded upon the very rights granted to the composer for the purpose of protecting his interests. Id. at 162-64 (footnotes omitted) (quoting H.R. REP. No. 61-2222, at 7 (1909)).
120. Id.
121. Until the recent flood of peer-to-peer file sharing lawsuits, copyright infringement suits against individuals were so rare as to be almost unthinkable. When Universal Studios included a nominal claim against individual Betamax owner William Griffiths in its 1976 lawsuit against Sony, that fact inspired a host of editorial cartoons, despite the fact that Mr. Griffiths was a client of the firm representing Universal and had consented to be sued. See JAMES LARDNER, FAST FORWARD 17-19 (2002).
122. See, e.g., Twentieth Century Music Corp., 422 U.S. 151 (restaurant owner defendant); Fortnightly, 392 U.S. 390 (CATV system defendant); Stowe v. Thomas, 23 F. Cas. 201 (C.C.E.D. Pa. 1853) (No. 13,514) (publisher defendant).
123. See, e.g., Twentieth Century Music Corp., 422 U.S. at 162-64 (comparing the restaurant owner to a listener rather than a performer under the statute).
124. See, e.g., White-Smith Music Publ'g Co. v. Apollo Co., 209 U.S. 1, 17 (1908) ("In no sense can musical sounds which reach us through the sense of hearing be said to be copies as that term is generally understood, and as we believe it was intended to be understood in the statutes under consideration."); Stowe, 23 F. Cas. at 206 ("The author's conceptions have become the common property of his readers, who cannot be deprived of the use of them, nor of their right to communicate them to another clothed in their own language, by lecture or treatise.").
125. 487 F.2d 1345 (Ct. Cl. 1973), aff d by an equally divided Court, 420 U.S. 376 (1975).
126. See Universal City Studios, Inc. v. Sony Corp. of Am., 659 F.2d 963, 970 (9th Cir. 1981) ("Williams & Wilkins Co., which has been appropriately regarded as the 'Dred Scott decision of copyright law' is clearly not binding in this circuit, and, in any event, we find its underlying rationale singularly unpersuasive." (citation omitted) (quoting Williams & Wilkins Co., 487 F.2d at 1387 (Nichols, J., dissenting))), rev'd, 464 U.S. 417 (1984).
127. Williams & Wilkins Co., 487 F.2d at 1346-48.
128. Id. at 1362.
129. Id. at 1350.
130. Id.
131. Id. at 1353.
132. Id. at 1358.
133. Id. at 1348.
134. Id. at 1362.
135. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 420 (1984).
136. Id. at 454-55;
137. see also Jessica Litman, The Story of Sony v. Universal Studios: Mary Poppins Meets the Boston Strangler, in I NTELLECTUAL PROPERTY STORIES 358 (Jane C. Ginsburg & Rochelle Cooper Dreyfuss eds., 2005) [hereinafter Litman, Story of Sony] (describing internal Supreme Court memoranda that document the Court's deliberations in Sony).
138. Sony, 464 U.S. at 456. The interests of television viewers had more influence on the result in Sony than the ultimate opinion reveals. Justice Stevens, who authored the majority opinion, focused primarily on the rights of homeowners using VCRs from the first Supreme Court deliberations on the case. Indeed, an early draft of Justice Stevens's opinion characterized the lawsuit as an effort "to control the way William Griffiths watches television." Litman, Story of Sony, supra note 96, at 358.
139. See, e.g., CRAIG JOYCE ET AL., COPYRIGHT LAW 75 (6th ed. 2003) (asking whether the White-Smith analysis is "at least defensible");
140. Deborah Tussey, Technology Matters: The Courts, Media Neutrality, and New Technologies, 12 J. INTELL. PROP. L. 427, 428 (2005) (characterizing the White-Smith judgment as "formalistic"). For a different analysis that seeks to rehabilitate the White-Smith opinion,
141. see Kenneth M. Alfano, Copyright in Exile: Restoring the Original Parameters of Exclusive Reproduction, 11 J. TECH. L. & POL'Y 215, 230 (2006) (arguing that the Court in White-Smith construed "copying" as "substitution-the functional equivalent of 'printing' for books" (footnote omitted)).
142. White-Smith Music Publ'g Co. v. Apollo Co., 209 U.S. 1, 8-9 (1908).
143. Id. at 17. The Court reasoned: It may be true that in a broad sense a mechanical instrument which reproduces a tune copies it; but this is a strained and artificial meaning. When the combination of musical sounds is reproduced to the ear it is the original tune as conceived by the author which is heard. These musical tones are not a copy which appeals to the eye. In no sense can musical sounds which reach us through the sense of hearing be said to be copies, as that term is generally understood, and as we believe it was intended to be understood in the statutes under consideration. A musical composition is an intellectual creation which first exists in the mind of the composer; he may play it for the first time upon an instrument. It is not susceptible of being copied until it has been put in a form which others can see and read. The statute has not provided for the protection of the intellectual conception apart from the thing produced, however meritorious such conception may be, but has provided for the making and filing of a tangible thing, against the publication and duplication of which it is the purpose of the statute to protect the composer.
144. Id.; see also Stern v. Rosey, 17 App. D.C. 562 (D.C. Cir. 1901) (holding that phonograph records are not "copies").
145. See White-Smith, 209 U.S. at 17-18.
146. See, e.g., Ginsburg, Copyright and Control, supra note 14, at 210, 206-10 ("[C]ourts faced with what appeared to be all-or-nothing attempts at copyright enforcement, preferred to interpret the statute in a way that would leave the copyright owners with nothing.").
147. 780 F. Supp. 1283 (N.D. Cal. 1991), aff'd, 964 F.2d 965 (9th Cir. 1992).
148. Id.
149. Id. at 1286.
150. Id. at 1291.
151. Id.
152. Id. at 1292.
153. Lewis Galoob Toys, Inc. v. Nintendo of Am., Inc., 964 F.2d 965, 967 (9th Cir. 1992);
154. see also Vault Corp. v. Quaid Software Ltd., 847 F.2d 255, 262, 266 (5th Cir. 1988) (dismissing a contributory infringement claim for the distribution of software that allowed consumers to make infringing copies of a computer program on the ground that the software also facilitated consumers' unauthorized but noninfringing backup copies and was therefore capable of substantial noninfringing use).
155. See Lewis Galoob Toys, 780 F. Supp. at 1291. The trial court observed: The Game Genie is a tool by which the consumer may temporarily modify the way in which to play a video game, legally obtained at market price. Any modification is for the consumer's own enjoyment in the privacy of the home. Such a process is analogous in purpose, if not in technology, to skipping portions of a book, learning to speed read, fast-forwarding a video tape one has purchased in order to skip portions one chooses not to see, or using slow motion for the opposite reasons. Id.
156. 49 F.3d 807 (1st Cir. 1995), aff'd by an equally divided Court, 516 U.S. 233 (1996).
157. Id. at 810.
158. Id. at 816;
159. see 17 U.S.C. § 102(b) (2000) ("In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.").
160. Lotus Dev. Corp., 49 F.3d at 821 (Boudin, J., concurring).
161. 180 F.3d 1072 (9th Cir. 1999).
162. Id. at 1073.
163. Id. at 1075.
164. Id.
165. Id. at 1081.
166. Id. at 1079.
167. See, e.g., MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993) (holding that transitory random access memory reproduction of the copyrighted software was sufficiently "fixed," under the statutory definition, to infringe the right to reproduce a work in copies); Red Baron-Franklin Park, Inc. v. Taito Corp., 883 F.2d 275, 278-79 (4th Cir. 1989) (holding that playing a coin-operated videogame in a video arcade is an infringing public performance); Worlds of Wonder, Inc. v. Veritel Learning Sys., Inc., 658 F. Supp. 351, 354-55 (N.D. Tex. 1986) (concluding that children who played tapes containing public domain material in Teddy Ruxpin toys created infringing audiovisual works that were substantially similar to the copyrighted audiovisual work comprising a Teddy Ruxpin tape playing in a Teddy Ruxpin toy).
168. 239 F.3d 1004 (9th Cir. 2001).
169. Id. at 1019.
170. Id. at 1019, 1024.
171. Id. at 1015 ("Direct economic benefit is not required to demonstrate a commercial use. Rather, repeated and exploitative copying of copyrighted works, even if the copies are not offered for sale, may constitute a commercial use.").
172. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 923 (2005).
173. Memorandum from Justice John Paul Stevens to the Justices of the 1983 U.S. Supreme Court at 18 (June 1983) (on file with author);
174. see Litman, Sony Paradox, supra note 38, at 930-34 (discussing Justice Stevens' first draft of his opinion in Sony).
175. See Music on the Internet: Is There an Up Side to Downloading?: Hearing Before the S. Comm. on the Judiciary, 106th Cong. (2000), available at http://judiciary.senate.gov/hearing.cfm? id=195 (expressing divergent views); Lutheran-Hymnal.com, Permissions and Copyright, http://www.lutheran-hymnal.com/about_us/permision_and_copyright.html ("Personal private use is not permission for archiving this material for your self [sic] or others in any manner... ."); MusicUnited.org, The Law, http://www.musicunited.org/2_thelaw.html ("If you make unauthorized copies of copyrighted music recordings, you're stealing."); University of Georgia, Regents Guide to Understanding Copyright & Educational Fair Use - Office of Legal Affairs, http://www.usg.edu/ legal/copyright/#part3d3b ("[S]ince personal fair use is a use of the work-not the copyright-it is always a protected use.").
176. For a somewhat broader definition, see Tussey, supra note 28, at 1134 ('"Personal use,' in the broad sense, means consumption or adaptation of intellectual properties by individual users for their own purposes, including uncompensated sharing of those works with others."). For a narrower definition,
177. see Lutheran-Hymnal.com, supra note 128 ("Personal private use is that which occurs within you [sic] immediate biological family ....").
178. See Stadler, supra note 58, at 914 (referring to consumers of copyrighted material as "people").
179. See, e.g., Liu, supra note 29, at 400 ("I am consciously choosing the term 'consumer,' rather than a more neutral term like 'user,' 'the public,' or 'audience,' in part because I wish to focus on those uses that are literally consumptive rather than productive in nature, and the term roughly captures this distinction.").
180. See, e.g., Cohen, supra note 30, at 347 ("Most... have settled ... on 'users,' a term that manages simultaneously to connote both more active involvement... and a residual aura of addiction ....").
181. See, e.g., Fred von Lohmann, Is Suing Your Customers a Good Idea?, LAW.COM, Sept. 29, 2004, http://www.law.com/jsp/article.jsp? id=1095434496352 (referring to users of peer-to-peer file-sharing software as "music fans"); .
182. see also Justin Hughes, "Recoding" Intellectual Property and Overlooked Audience Interests, 77 TEXAS L. REV. 923 (1999) (critiquing scholarly assertions of nonowner interests in intellectual property).
183. Saul Cohen, Fair Use in the Law of Copyright, 6 COPYRIGHT L. SYMP. (ASCAP) 43, 58 (1955).
184. 17 U.S.C. § 106 (2000).
185. See, e.g., MusicUnited.org, supra note 128 ("[Y]ou need the permission of the copyright holder before you copy and/or distribute a copyrighted music recording."); Brad Templeton, 10 Big Myths About Copyright Explained, http://www.templetons.com/brad/copymyths.html ("[C]opyright law makes it technically illegal to reproduce almost any new creative work ....").
186. 17 U.S.C. § 106(4)-(5). The copyright statute's definitions of "display" and "perform" are broad enough to encompass looking at and listening to: To "display" a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.... To "perform" a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible. 17 U.S.C. § 101. Because the statutory performance and display rights are limited to public performance and public display, they do not encompass watching television in the living room, listening to music in the bedroom, or looking at the poster that is hanging on the wall of the kitchen. See H. R. REP. No. 94-1476, at 62-65 (1976).
187. 17 U.S.C. § 106(3) ("[T]o distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership or by rental lease or lending ...."). This limitation has attracted almost no attention in the thirty years since the enactment of the 1976 Act, presumably because few unauthorized private distributions of copies or phonorecords have attracted litigation.
188. 17 U.S.C. §§101,106(1).
189. 17 U.S.C. § 109.
190. 17 U.S.C. § 109(e).
191. 17 U.S.C. § 110(5).
192. Family Movie Act of 2005, Pub. L. No. 109-9, §§ 201-02, 119 Stat. 223, 223-24 (to be codified at 17 U.S.C. § 110 (11)).
193. 17 U.S.C. § 117.
194. 17 U.S.C. § 120.
195. 17 U.S.C. § 602(a)(2).
196. 17 U.S.C. § 1008. The scope of the §1008 prohibition against infringement suits is contested. See Atlantic Recording Corp. v. XM Satellite Radio, 81 U.S.P.Q. 2d (BNA) 1407 (S.D.N.Y. 2007) (holding that § 1008 protects XM radio from suit based on actions taken in its capacity as a distributor of audio recording devices, but not from suit based on its conduct as a satellite radio broadcaster, or from suit based on its actions as an "XM + Mp3" content delivery provider);
197. Litman, War Stories, supra note 6, at 357-60, 359 n.114 (discussing § 1008 and its scope).
198. See Family Movie Act of 2005, Pub. L. No. 109-9, §§ 201-02, 119 Stat. 223, 223-24 (to be codified at 17 U.S.C. § 110(11)).
199. 17 U.S.C. § 111.
200. 17 U.S.C. § 117(c).
201. 17 U.S.C. § 121.
202. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 454-56 (1984).
203. Recording Indus. Ass'n of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d 1072, 1079 (9th Cir. 1999). The court's basis for this conclusion is ambiguous. It isn't clear whether the court intended to hold that such copying came within the shelter of 17 U.S.C. § 1008 or was excused on some other ground, such as fair use. See A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). In a recent Copyright Office filing, a coalition of copyright owners insisted that such copying was lawful only to the extent that copyright owners had implicitly authorized it. See Joint Reply Comments of Ass'n of American Publishers et al. at 21-23, 22 n.46, Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, No. RM 2005-11 (U.S. Copyright Office Feb. 2, 2006), available at http://www.copyright.gov/ 1201/2006/reply/11metalitz_AAP.pdf.
204. Recording Indus. Ass'n of Am., 180 F.3d at 1081.
205. See Davis v. Gap, Inc., 246 F.3d 152, 173 (2d Cir. 2001) ("Most honest citizens in the modern world frequently engage, without hesitation, in trivial copying that, but for the de minimis doctrine, would technically constitute a violation of law.").
206. According to the Register of Copyrights, the literal scope of the § 117 privilege to make archival or backup copies is very narrow; so narrow, indeed, that compliance makes little sense: Section 117 requires the destruction of any archived copy once possession of the program ceases to be rightful. Possession - or at least use - of a program typically ceases to be rightful once the user acquires an upgraded version. A literal reading of section 117 would require the user to go through all of the backup tapes, CD-Rs and other archival media, identify each of the files that constitute the earlier version of the computer program, and attempt to delete them. This is neither practical nor reasonable. Based on the evidence presented during the course of preparing this Report, there is a fundamental mismatch between accepted, prudent practice among most system administrators and other users, on one hand, and section 117 on the other. As a consequence, few adhere to the letter of the law. U.S. COPYRIGHT OFFICE, DMCA § 104 REPORT: A REPORT OF THE REGISTER OF COPYRIGHTS PURSUANT TO § 104 OF THE DIGITAL MILLENNIUM COPYRIGHT ACT 150 (2001) [hereinafter DMCA § 104 REPORT] (footnote omitted), available at http://www. copyright.gov/reports/studies/dmca/sec-104-report-vol-1 .pdf.
207. See, e.g., Tushnet, supra note 25, at 554 ("Commentators have noted a tendency to claim as fair use activities like private reading or listening .... But fair use ... is ill suited to protecting activities that are at the core of ordinary uses of copyrighted works; it is supposed to deal with unusual or marginal activities.").
208. 17 U.S.C. § 107; see also Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578-79 (1994) (applying the fair use factors to a musical parody); Am. Geophysical Union v. Texaco Inc., 37 F.3d 881, 886-99 (2d Cir. 1994) (analyzing institutional copying of legally acquired scholarly journals under fair use).
209. But see id. at 932, 933-34 (Jacobs, J., dissenting) (arguing that photocopying should be deemed the modern equivalent of taking notes).
210. See, e.g., Stadler, supra note 58, at 933-42 (reconceptualizing copyright law to protect authors from competitive harms).
211. Indeed, it's interesting that Sony, the sole Supreme Court case to try to assess personal use under the fair use rubric, was widely criticized for its analysis of the fair use factors. The case attracted particular scorn for giving only nominal consideration to factors other than whether the use was commercial and whether it was likely to harm the copyright owner's market. See, e.g., Jessica D. Litman, Copyright, Compromise, and Legislative History, 72 CORNELL L. REV. 857, 897-98 (1987) [hereinafter Litman, Copyright] (explaining how this analysis would "truncatef] the statutory inquiry");
212. Litman, Technological Change, supra note 20, at 350 n.411 (criticizing the Sony Court's approach);
213. Lloyd L. Weinreb, Fair's Fair: A Comment on the Fair Use Doctrine, 103 HARV. L. REV. 1137, 1153 (1990) ("Most of the commentary about the Sony opinion has been critical, even dismissive.").
214. See Campbell, 510 U.S. at 579 ("Although... transformative use is not absolutely necessary for a finding of fair use ... the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright. . . .").
215. See id. at 587, 586-89 ("[T]his factor calls for thought not only about the quantity of the materials used, but about their qualify and importance, too.").
216. Accord Tushnet, supra note 25, at 555-60 (arguing that increasing emphasis on the transformativeness of a use has made fair use unavailable for copying that should be lawful).
217. 60 F.3d 913 (2d Cir. 1994).
218. JANE C. GINSBURG, JESSICA LITMAN & MARY L. KEVLIN, TRADEMARKS AND UNFAIR COMPETITION: CASES AND MATERIALS (4th ed. forthcoming 2007).
219. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 554 (1985) (holding that the unpublished nature of a work tends to negate the fair use defense).
220. See Steve Jobs, Thoughts on Music (Feb. 6, 2007), http://www.apple.com/ hotaews/ thoughtsonmusic/ (describing Apple iTunes "FairPlay" DRM, which allows songs to be copied to up to five computers).
221. Cf. Am. Geophysical Union v. Texaco Inc., 37 F.3d 881 (2d Cir. 1994) (finding copying of scientific articles for a company's researchers unfair in part because it might undermine the nascent market for photocopy licenses); Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828 (CD. CaI. 2006) (finding a display of thumbnail images in an image search engine unfair because it might undermine the nascent market for downloadable thumbnail images of pornography to display on cell phone screens).
222. See Apple - iTunes - iTunes Store - TV Shows, http://www.apple. com/itunes/store/ tvshows.html (offering episodes of Lost for $1.99 per episode).
223. See, e.g., Arista Records, Inc. v. MP3Board, Inc., No. 00 Civ. 4660, 2002 U.S. Dist. LEXIS 16165 (S.D.N.Y. Aug. 28, 2002) (holding that a music file search engine and the people who used it made commercial use of copyrighted works because they didn't pay the customary price); A&M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896, 912 (N.D. Cal. 2000), off d in part, rev'd in part, 239 F.3d 1004 (9th Cir. 2001) ("Moreover, the fact that Napster users get for free something they would ordinarily have to buy suggests that they reap economic advantages from Napster use.").
224. Sling Media, Slingbox Tuner, http://us.slingmedia.com/page/slingboxtuner. html.
225. Mark Glaser, Slingbox Lets You Place-Shift Your TV, PBS.ORG, May 1, 2006, http://www.pbs.org/mediashift/2006/05/ cool_factorslingbox_lets_you_b.html.
226. Id.
227. See, e.g., MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993) ("The law also supports the conclusion that Peak's loading of copyrighted software into RAM creates a 'copy' ofthat software in violation of the Copyright Act."). For a discussion of why reproductions in RAM should not be deemed "copies" under the copyright statute,
228. see Joseph P. Liu, Owning Digital Copies: Copyright Law and the Incidents of Copy Ownership, 42 WM. & MARY L. REV. 1245, 1255-78 (2001) and Pamela Samuelson, The Copyright Grab, WIRED, Jan. 1996, at 134.
229. See Wireless - CBS SportsLine.com, http://www.sportsline.com/ wireless/general/mobile (offering live coverage of sporting events); Fox Sports on MSN, http://msn.foxsports.com (same).
230. See Lunney, supra note 29, at 997-98 ("At that time, the printing press was essentially the only technology available for reproducing a copyrighted work, and given that technology, the question of infringement arose . . . when a second, competing printer published a later work that incorporated, to a greater or lesser extent, material from an earlier copyrighted work.");
231. R. Anthony Reese, The Story of Folsom v. Marsh: Distinguishing Between Infringing and Legitimate Uses, in INTELLECTUAL PROPERTY STORIES 259, 280, 286-88 (Jane C. Ginsburg & Rochelle Cooper Dreyfuss eds., 2006) ("Justice Story never mentions the specific rights actually conferred on the plaintiffs by the copyright statute, but the 1931 Act provided that the copyright owner of a book 'shall have the sole right and liberty of printing, reprinting, publishing, and vending such book.'").
232. 9 F. Cas. 342 (CCD. Mass. 1841) (No. 4901).
233. Reese, supra note 176, at 292.
234. See Latman, supra note 7, at 789-90 (describing the case law).
235. See Litman, Technological Change, supra note 20, at 313-14 ("The fact that private use had no defenders and received no explicit treatment in the revision conferences, therefore, had substantive results on the legality of private use under the revision bill.").
236. Litman, Copyright, supra note 160, at 898 n.256, 883-88, 897-98 ("Indeed, prior to the 1976 Act, almost all fair use case law involved commercial uses. This fact figured significantly in the controversy between copyright owners and educational organizations over the appropriate scope of fair use in educational contexts.").
237. See Copyright Law Revision: Hearings Before Subcomm. No. 3 of the H. Comm. on the Judiciary, 89th Cong. 1498-99 (1965) (statement of Ralph H. Dwan, on behalf of 3M Company) ("Since no legal action has ever been brought against anyone for [copying works for personal use], the public has a right to believe that the practice is perfectly lawful, and copyright owners have acquiesced in that right."); id. at 1514-16 (statement of Lyle Lodwick, Director of Marketing, Williams amp; Wilkins Company) (suggesting that millions of individuals who make photocopies are innocent infringers, and Congress should expand infringement liability to the owners and operators of photocopy machines to give publishers a meaningful remedy against this widespread infringement).
238. See Mark A. Lemley, Dealing with Overlapping Copyrights in the Internet, 22 U. DAYTON L. REV. 547, 566 (1997) ("[T]he fair use analysis is extremely fact-specific, which means both that it is hard to predict in advance and that it will be expensive to prove.");
239. Litman, Reforming Information Law, supra note 9, at 611-13 ("The potential chilling effect of having to go through hundreds of thousands of dollars in attorneys' fees in order to prevail after a trial on the merits can be substantial.").
240. Cf. Davis v. Gap, Inc., 246 F.3d 152, 173 (2d Cir. 2001) ("Most honest citizens in the modern world frequently engage, without hesitation, in trivial copying that, but for the de minimis doctrine, would technically constitute a violation of law.").185. Home Recording of Copyrighted Works: Hearings on H.R. 4783, H.R. 4794, H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the H. Comm. on the Judiciary, 97th Cong. 8 (1982) (statement of Jack Valenti, President, Motion Picture Association of America, Inc.).
241. See H.R. REP. No. 92-487, at 7 (1971), as reprinted in 1971 U.S.C.C.A.N. 1566, 1572 ("[I]t is not the intention of the Committee to restrain the home recording, from broadcasts or from tapes or records, of recorded performances, where the home recording is for private use ...."); 117 CONG. REC. 34, 748-49 (1971) (colloquy between Reps. Kastenmeier and Kazen) (confirming that the bill excludes liability for personal home recording).
242. 17 U.S.C. § 1008 (2000); see supra note 147 and accompanying text.
243. See MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993) (holding that the automatic transfer of copyrighted data from a storage medium, e.g., a hard drive, into a computer's random access memory constitutes copyright infringement); supra note 174 and accompanying text.
244. Computer Maintenance Competition Assurance Act, Pub. L. No. 105-304, §§ 301-02, 112 Stat. 2886, 2886-87 (1998) (codified at 17 U.S.C. § 117).
245. Senator Ashcroft's Digital Copyright Clarification and Technology Education Act of 1997, one of the precursor bills to the Digital Millennium Copyright Act, included a more general exemption: [I]t is not an infringement to make a copy of a work in a digital format if such copying-(1) is incidental to the operation of a device in the course of the use of a work otherwise lawful under this title; and (2) does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. S. 1146, 105th Cong. § 205 (1997); see 143 CONG. REC 17,487-91 (1997) (describing exemption); 144 CONG. REC. 3,224-26 (1998) (same). The Senator was persuaded to endorse the narrower amendment limited to computer repair businesses because only computer repair businesses had been found liable for making RAM copies. 144 CONG. REC. 9,237, 9,250 (1998).
246. Section 104 of the Digital Millennium Copyright Act directed the Copyright Office to study the question (among others) and to submit a report to Congress within two years. In the 2001 report, the Copyright Office noted sharp division between proponents of a broad privilege to make ephemeral RAM copies incidental to lawful use and opponents of any diminution in the scope of the reproduction right. See DMCA § 104 REPORT, supra note 156, at 50-53. Representatives of copyright owners had argued, the Copyright Office reported, that it was inappropriate to enact any exception for the benefit of any user interest that had not demonstrated concrete harm from the potentially overbroad application of § 106. Id. at 55-56. Computer repair services had demonstrated harm and Congress had accordingly enacted a narrow exception. Id. at 55. Since others had not yet been held liable for making RAM copies, any statutory privilege was premature. Id. at 56. After examining testimony and written comments on both sides, the Copyright Office had concluded that the scope of the exclusive reproduction right was disputed: Nonetheless, a general rule can be drawn from the language of the statute. In establishing the dividing line between those reproductions that are subject to the reproduction right and those that are not, we believe that Congress intended the copyright owner's exclusive right to extend to all reproductions from which economic value can be derived. Id. at 111. RAM copies, the Office concluded, should generally be deemed to be fixed within the meaning of the statute and therefore potentially infringing. Id. at 112-23. There was, however, no evidence that anyone was bringing copyright infringement suits against consumers for such copying, and the Office had concluded that consumer RAM copies would generally be deemed noninfringing because of fair use or implied license. Id. at 124-45. The Register nonetheless supported an amendment to clarify that no liability should attach to ephemeral copies that were incidental to lawful music transmissions; music industry representatives insisted, however, that such an amendment would be inappropriate since no showing of harm had been made.
247. See, e.g., Digital Millennium Copyright Act § 104 Report: Hearing Before Subcomm. on Courts, the Internet and Intellectual Property of the H. Comm. on the Judiciary, 107th Cong. 76-85 (2001) [hereinafter 104 Report Hearing] (statement of Marvin Berenson, Senior Vice President and General Counsel, Broadcast Music Inc.), available at http://www.judiciary.house. gov/media/pdfs/printers/107th/76669.pdf.
248. See 104 Report Hearing, supra note 191, at 22, 17-23 (statement of Carey Ramos, Attorney, Paul, Weiss, Rifkind, Wharton & Garrison LLP, on behalf of National Music Publishers Association) ("[T]he line of demarcation between downloads and streams is already far from clear, and is likely to be further blurred as new technologies and business models develop. It would be unwise to codify an exemption for a technology that is rapidly changing."); id. at 46, 45-52 (statement of Emery Simon, Counsel, Business Software Alliance) ("If temporary copy exceptions were somehow introduced ... into law, we think this would create uncertainty.").
249. Complaint, Huntsman v. Soderbergh, No. 02-M-1662 (D. Colo. Aug. 29, 2002).
250. See The Family Movie Act: Hearing on H.R. 4586 Before the Subcomm. on Courts, the Internet, and Intellectual Property of the H. Comm. on the Judiciary, 108th Cong. 7 (2004) (statement of Marybeth Peters, Register of Copyrights, U.S. Copyright Office) ("[I]t seems clear to me that under existing law this conduct and these products are lawful.");
251. see also id. at 82 (statement of Rep. J. Randy Forbes, Member, House Comm. on the Judiciary) ("Why shouldn't I have that fundamental core right as a consumer to either say give me all of the 29th Division clips from a movie that I want to find or, reverse, take out all the sexual items in that movie?").
252. Family Movie Act of 2005, Pub. L. No. 109-9, §§ 201-02, 119
253. H.R. REP. NO. 109-33, pt. 1, at 5 (2005).
254. See, e.g., Digital Media Consumers ' Rights Act of 2003: Hearing on H.R. 107 Before the Subcomm. on Commerce, Trade and Consumer Protection of the H. Comm. on Energy and Commerce, 108th Cong. 4 (2004) [hereinafter Hearing on H.R. 107] (statement of Rep. Joe Barton, Chairman, Comm. on Energy and Commerce) ("[A]fter I buy a music video or a movie CD, it is mine once I leave the store. Does that mean that I am under the impression that I have unlimited rights? Of course not. I understand that I'm limited under existing law to activities that are not commercial and I want to emphasize that, not commercial, or would come into competition with the manufacturer of that product."); 144 CONG. REC. 18,771 (1998) (statement of Rep. Barney Frank) ("What we wanted to do was to come up with ways to adapt the protection of intellectual property to a modern technological era, without unduly diminishing people's rights to enjoy things.").
255. See No Electronic Theft (NET) Act, Pub. L. No. 105-147, § 2, 111 Stat. 2678, 2678 (1997) (codified at 17 U.S.C. § 101 (2000)) (amending the term "financial gain" to include "receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works"); Computer Software Rental Amendments Act of 1990, Pub. L. 101-650, § 802, 104 Stat. 5089, 5134 (codified at 17 U.S.C. § 109) (amending § 109 to prohibit unauthorized rental of computer programs); Record Rental Amendment of 1984, Pub. L. No. 98-450, § 2, 98 Stat. 1727, 1727 (codified at 17 U.S.C. § 109) (amending § 109 to prohibit unauthorized rental of phonorecords). 199. See LARDNER, supra note 81, at 173-227, 263-88 (describing the failure of attempts to persuade Congress to enact laws protecting copyright owners from the VCR or video rental).
256. See, e.g., H.R. REP. NO. 105-339, at 5 (1997) (asserting that the bill was intended to prevent "willful conduct from destroying businesses, especially small businesses, that depend on licensing agreements and royalties for survival"); The WIPO Copyright Treaties Implementation Act: Hearing on H.R. 2281 Before the Subcomm. on Telecommunications, Trade, and Consumer Protection of the H. Comm. on Commerce, 105th Cong. 2, 1-3 (1998) (statement of Rep. Billy Tauzin, Chairman, House Subcomm. on Telecommunications, Trade, and Consumer Protection) ("As electronic commerce develops, we as policymakers must indeed establish clear policy for consumers, network and hardware providers, and copyright owners which protects the integrity and value of electronic commerce.").
257. See, e.g., Hearing on H.R. 107, supra note 197, at 46-47 (statement of Rep. Cliff Stearns, Member, Comm. on Energy and Commerce) ("So I ask you, Mr. Valenti, if the Supreme Court has ruled that the right of the consumer to make a fair use of his own copies is there, why would you deny that right, if the Supreme Court has ruled that?"); id. at 68-71 (colloquy) (discussing scope of fair use privilege for consumer home copying); WIPO Copyright Treaties and Implementation Act and Online Copyright Liability Limitation Act: Hearing on H.R. 2281 and H.R. 2180 Before the Subcomm. on Courts and Intellectual Property of the H. Comm. on the Judiciary, 105th Cong. (1997).
258. 144 CONG. REC. 18, 771 (1998) (statement of Rep. Frank).
259. See Litman, Sharing, supra note 44, at 2-4, 27-30 (offering examples);
260. see also Kurt Hunt, Note, Copyright and YouTube: Pirate's Playground or Fair Use Forum?, 14 MICH. TELECOMM. & TECH. L. REV. (forthcoming 2007) (manuscript at 2-8, on file with author) (analyzing copyright implications of YouTube).
261. See, e.g., Fred von Lohmann, RIAA Says Ripping CDs to Your iPod is NOT Fair Use, DEEP LINKS, Feb. 15, 2006, http://www.eff.org/deeplinks/archives/004409.php (contrasting the statement by RIAA counsel in the Grokster case that ripping a CD was "perfectly lawful" with the later RIAA statement that ripping a CD is not fair use).
262. See generally Jessica Litman, War and Peace: The 34th Annual Donald C. Brace Lecture, 53 J. COPYRIGHT SOCY U.S.A. 101 (2006) (discussing the polarization in the "copyright war").
263. See generally id. at 103-11 (summarizing divergent views).
264. See, e.g., H.R. REP. NO. 94-1476 (1976), as reprinted in 1976 U.S.C.C.A.N. 5659. See generally Litman, Copyright, supra note 160.
265. See, e.g., Ginsburg, supra note 5, 115-16 ("[W]hen the exploitation of works shifts from having copies to directly experiencing the content of the work, the author's ability to control access becomes crucial.").
266. See, e.g., Hearing on H.R. 107, supra note 197, at 83, 80-83 (statement of Cary Sherman, President, Recording Industry Association of America) ("[T]he marketplace is addressing what consumers want and expect... .").
267. See, e.g., Consumer Benefits of Today's Digital Rights Management Solutions: Hearing Before the Subcomm. on Courts, the Internet and Intellectual Property of the H. Comm. on the Judiciary, 107th Cong. 107-10 (2002) (colloquy).
268. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984) (suit against manufacturer of VCR that facilitated consumer copying); Teleprompter Corp. v. CBS, 415 U.S. 394 (1974) (suit against operator of cable television system that enabled viewers to watch television signals broadcast outside their local service area); Reese, supra note 57, at 16-25 (contrasting current U.S. copyright law with earlier statutes).
269. See generally YOCHAI BENKLER, THE WEALTH OF NETWORKS: HOW SOCIAL PRODUCTION TRANSFORMS MARKETS AND FREEDOM (2006) (tracing the rise of networked peer production); Hunt, supra note 203 (describing YouTube and the copyright issues it implicates).
270. See Rebecca Tushnet, Payment in Credit: Copyright Law and Subcultural Creativity, LAW & CONTEMP. PROBS., Spring 2007, at 133 (2007) (analyzing copyright implications of fan videos disseminated over the Internet); Hunt, supra note 203 (describing the manipulation and transformation of clips on YouTube).
271. See Liu, supra note 29, at 413, 412-14 ("[D]igital technology is changing both the opportunities for, and costs of, engaging in this kind of communicative consumption.");
272. Stadler, supra note 58, at 945, 944-45 ("The most significant impact of technological advancement has been the transformation of consumers into public distributors.");
273. Hunt, supra note 203 (manuscript at 67) (describing different material posted on YouTube).
274. See Jessica Litman, Creative Reading: A Comment on Rebecca Tushnet's Payment in Credit: Copyright Law and Subcultural Creativity, LAW & CONTEMP. PROBS., Spring 2007, at 175 (discussing the creativity involved in reading, listening, viewing, and playing);
275. Stadler, supra note 58, at 946-47 (explaining the public value of individual copying);
276. Tushnet, supra note 25, at 546 ("Copies can still serve free speech purposes when their culture-altering and culture-constituting effects aren't distilled into some new derivative work but remain in a viewer's mind or appear in her conversation .. ..").
277. Several legal scholars have proposed expanding or rethinking fair use in ways that might accommodate an enhanced personal use exemption. Their analyses would stretch or reformulate fair use to clarify its application to customary personal uses. See, e.g., Lunney, supra note 29, at 1026 ("To the extent that private copying expands access to existing works without decreasing the copyright owner's revenues and the resulting incentive to create additional works, private copying is Pareto optimal and should constitute a fair use.");
278. Deborah Tussey, supra note 28, at 1129 (proposing adoption of a defined, limited personal use exemption).
279. But see Michael J. Madison, Rewriting Fair Use and the Future of Copyright Reform, 23 CARDOZO ARTS & ENT. L.J. 391, 414 (2005) ("[F]air use is not the place for the personal as such.").
280. Accord Stadler, supra note 58, at 956 ("The problem underlying both of these interpretations of 'fair use' is that the property rights to which it makes exception have grown increasingly, even unmanageably broad.").
281. See OFFICE OF TECH. ASSESSMENT, INTELLECTUAL PROPERTY RIGHTS IN AN AGE OF ELECTRONICS AND INFORMATION 209 (1986) (reporting that an OTA commissioned survey reveals that majority of respondents finds copying for personal use to be acceptable and copying for commercial purposes to be unacceptable); THE POLICY PLANNING GROUP, YANKELOVICH, SKELLY & WHITE, INC., PUBLIC PERCEPTIONS OF THE "INTELLECTUAL PROPERTY RIGHTS" ISSUE (1985) (OTA Contractor Report describing survey in detail);
282. See also OFFICE OF TECH. ASSESSMENT, supra note 7, at 163-65 (1989) (describing a survey where respondents generally agreed that it was improper to commercialize the work of another).
283. See Michael J. Meurer, Too Many Markets or Too Few? Copyright Policy Towards Shared Works, 11 S. CAL. L. REV. 903, 952 (2004) (discussing the Ninth Circuit's expansive view of commercial use);
284. John Tehranian, Et Tu, Fair Use? The Triumph of Natural-Law Copyright, 38 U.C. DAVIS L. REV. 465, 502-03 (2005) (criticizing holdings that have taken commercial use beyond its logical extreme).
285. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001); see also A&M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896 (N.D. CaI. 2000), aff'd in part, rev'd in part, 239 F.3d 1004 (9th Cir. 2001) ("Moreover, the fact that Napster users get for free something they would ordinarily have to buy suggests that they reap economic advantages from Napster use.").
286. Arista Records, Inc. v. MP3Board, Inc., No. 00 Civ. 4660, 2002 U.S. Dist. LEXIS 16165, at *39 (S.D.N.Y. Aug. 28, 2002) (quoting Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562 (1985)).
287. Arguably, Congress is guilty of something analogous in connection with criminal copyright infringement. See No Electronic Theft (NET) Act, Pub. L. No. 105-147, § 2(a), 111 Stat. 2678, 2678 (1997) (codified at 17 U.S.C. § 506 (2000) and 18 U.S.C. § 2319 (2000)) (expanding the definition of "financial gain").
288. See generally Géraldine Szott Moohr, Defining Overcriminalization Through Cost-Benefit Analysis: The Example of Criminal Copyright Laws, 54 AM. U. L. REV. 783, 788-806 (2005) (using cost-benefit analysis to evaluate broadened criminalization of copyright infringement).
289. In the context of a fair use inquiry, though, that observation implicates the fourth fair use factor, which asks what effect the use might have on the effect on the market for the copyrighted work. Using it to transform noncommercial personal uses into commercial ones under the first fair use factor and then noting its effect on the market in considering the fourth factor is double counting. See Matthew D. Bunker, Eroding Fair Use: The "Transformative " Use Doctrine After Campbell, 7 COMM. L. & POL'Y 1, 20 (2002) (critiquing the practice of double counting, particularly in Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997)).
290. See, e.g., Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 450-54 (1984) (examining evidence that time shifting might undermine the market for television programming).
291. See Lunney, supra note 29, at 983 ("[Unauthorized copying, again unlike theft, becomes socially undesirable only when it goes so far as to threaten the public's interest in an adequate supply of creative works.");
292. see also Am. Geophysical Union v. Texaco Inc., 60 F.3d 913, 936-39 (1994) (Jacobs, J., dissenting) (criticizing the majority opinion because photocopying had no measurable effect on the publishers' market); Sam Hughes, The Piracy Calculator, http://qntm.org/owe ("What's your illegal hoard worth? What's the street value of all your pirated MP3s and movies? How much would the RI/MPAA demand - minimum - if they sued you? Find out!").
293. See Sara K. Stadler, Incentives and Expectation in Copyright, 58 HASTINGS LJ. 433, 473-78 (2007) (arguing that the appropriate level of copyright incentive is both a policy question and an empirical one).
294. See Julie E. Cohen, Comment: Copyright's Public-Private Distinction, 55 CASE W. RES. L. REV. 963 (2005) (discussing the importance of user privacy to copyright law);
295. Julie E. Cohen, DRM and Privacy, 18 BERKELEY TECH. LJ. 575, 582 (2003) (defining intellectual privacy); Cohen, A Right to Read, supra note 23 (positing a constitutional privacy and autonomy interest for readers).
296. The incidental nature of many RAM copies was a key factor persuading the Register of Copyrights that most of them should be deemed noninfringing. DMCA § 104 REPORT, supra note 156, at 130-46;
297. see supra notes 191-92 and accompanying text. Similar considerations seemed to be at work in the Fortnightly and Sony decisions, discussed earlier. In both cases, the Court emphasized that defendant merely facilitated consumers watching programming that they were entitled to view. Sony Corp. of m. v. Universal City Studios, Inc., 464 U.S. 417 (1984); Fortnightly v. United Artists Television, Inc., 392 U.S. 390, 399-400 (1968);
298. see also Teleprompter Corp. v. CBS, 415 U.S. 394 (1974) (holding that "extending the range of viewability of a broadcast program" did not constitute a performance).
299. See, e.g., David Nimmer, Brains and Other Paraphernalia of the Digital Age, 10 HARV. J.L. & TECH. 1, 13-31 (1996) (discussing implied licenses).
300. See Litman, War Stories, supra note 6, at 352 (tracing the history of the jukebox exemption).
301. See H. COMM. ON THE JUDICIARY, 89TH CONG., COPYRIGHT LAW REVISION, PART 6: SUPPLEMENTARY REPORT OF THE REGISTER OF COPYRIGHTS ON THE GENERAL REVISION OF THE U.S. COPYRIGHT LAW: 1965 REVISION BILL, at 44-47 (Comm. Print 1965). Congress later incorporated an express ephemeral recording privilege for licensed broadcasters in the 1976 Copyright Act. See 17 U.S.C. § 112 (2000).
302. See Country Road Music, Inc. v. MP3.com, Inc., 279 F. Supp. 2d 325, 333 (S.D.N.Y. 2003) (holding that defendant is liable for willful copyright infringement).
303. Id. at 327.
304. Id. at 328.
305. Id. at 327-28 (citations and footnote omitted).
306. See generally Copyright Office Views on Music Licensing Reform: Hearing Before the Subcomm. on Courts, the Internet, and Intellectual Property of the H Comm. on the Judiciary, 109th Cong. 4-21 (2005) (statement of Marybeth Peters, Register of Copyrights, U.S. Copyright Office) (arguing that new digital methods of distribution required reassessing statutory licensing schemes); Loren, supra note 56, at 674 ("Even ventures backed by the major record companies are having a difficult time getting off the ground.").
307. See Litman, Sharing, supra note 44, at 13-23 (describing problems caused by Congress's adoption of copyright divisibility);
308. Loren, supra note 56, at 678 (suggesting that the need to negotiate multiple licenses hampers innovation);
309. see also United States v. Am. Soc'y of Composers, Authors, and Publishers (In re Am. Online), No. 41-1395, slip op. at 11 (S.D.N.Y. Apr. 25, 2007) ("Although the Act's classification provisions are non-exclusive and it is thus theoretically possible for the same transmission to constitute both a public performance and a reproduction,... we can discern no basis for ASCAP's sweeping construction of § 101.").
310. See Audio Recording: State of the Union Panel Discussion at the Future of Music Coalition Fifth Annual Policy Summit (Sept. 12, 2005), available at http://www.futureofrnusic.org/audio/summit05/panel04. stateofunion.mp3.
311. See, e.g., Morrell v. Rice, 622 A.2d 1156 (Me. 1993) (holding that an implied right of access had been created by necessity); Soltis v. Miller, 282 A.2d 369 (Pa. 1971) (holding that an implied right of way over adjacent property existed in order to gain access to a public way).
312. Storage Tech. Corp. v. Custom Hardware Eng'g & Consulting, Inc., 421 F.3d 1307, 1311 (Fed. Cir. 2005); Triad Sys. Corp. v. Se. Express Co., 64 F.3d 1330, 1335 (9th Cir. 1995); MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993); Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290, 1294 (D. Utah 1999); see supra note 174.
313. See, e.g., Hearing on H.R. 107, supra note 197, at 45-63 (colloquy).
314. Memorandum of Justice Harry Andrew Blackmun to the Justices of the 1983 U.S. Supreme Court at 17-18 (June 1983) (on file with author).
315. Id.
316. Id. at 19.
317. Id. at 22-23.
318. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 457-500 (1984) (Blackmun, J., dissenting).
319. See Litman, Technological Change, supra note 20, at 349 ("[T]he language of the 1976 Act discouraged the courts from discovering implied privileges, by couching its multiplicity of express privileges in such specificity and detail.").
320. See, e.g., SHELDON W. HALPERN, DAVID E. SHIPLEY & HOWARD B. ABRAMS, COPYRIGHT: CASES AND MATERIALS 201 (1992) ("[T]he structural approach of the Copyright Act is to define five broad basic rights and to provide a detailed list of specific exemptions, exclusions and compulsory licenses.").
321. See MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 518-19 (9th Cir. 1993) ("Since we find that the copy created in the RAM can be 'perceived, reproduced, or otherwise communicated,' we hold that the loading of software into RAM creates a copy under the Copyright Act.").
322. See A & M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896, 912-15 (N.D. Cal. 2000), aff'd in part, rev'd in part, 239 F.3d 1004 (9th Cir. 2001) (stating that Napster file sharing, though noncommercial in nature, adversely affects the copyrighted work's potential market by decreasing music sales, depriving publishers of royalties, and harming the record company's potential entry into the online market).