Fair use harbors

Virginia Law Review

Volumn 93, Issue 6, 2007, Pages 1483-1532

  Parchomovsky, Gideon ^a,b   Goldman, Kevin A ^c  

^a UNIVERSITY OF PENNSYLVANIA LAW SCHOOL   (United States)

^b BAR ILAN UNIVERSITY   (Israel)

^c NONE

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[No Author keywords available]

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EID: 36249002972     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (252)

1. Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir. 1929) (dubbing fair use the "most troublesome [doctrine] in the whole law of copyright").
2. 17 U.S.C. § 106(1)-(5) (2000). The section also recognizes the right of copyright owners in sound recordings to digitally perform the work. 17 U.S.C. § 106(6).
3. For discussion, see infra Part I.
4. 17 U.S.C. § 107.
5. See generally Pierre N. Leval, Toward A Fair Use Standard, 103 Harv. L. Rev. 1105, 1105-06 (1990) (noting that the legislature provided courts with scant guidance as to how to decide fair use cases and that "judges generally have neither complained of the absence of guidance, nor made substantial efforts to fill the void").
6. Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417, 448 & n.31 (1984) (referring to fair use as an "equitable rule of reason").
7. Harper & Row, Publishers v. Nation Enters., 471 U.S. 539, 552 (1985) ("[F]air use analysis must always be tailored to the individual case.").
8. Leval, supra note 5, at 1106 (stating that "[j]udges do not share a consensus on the meaning of fair use").
9. Lloyd L. Weinreb, Fair's Fair: A Comment on the Fair Use Doctrine, 103 Harv. L. Rev. 1137, 1138 (1990) (expressing doubt that "the results in concrete cases can be made predictably responsive to a limited set of definite principles - certainly not large, general principles and not very often even more specific, intermediate ones").
10. See, e.g., John E. Calfee & Richard Craswell, Some Effects of Uncertainty on Compliance with Legal Standards, 70 Va. L. Rev. 965, 995 (1984) (noting that when the "probability [of liability] declines as defendants take more care, then defendants may tend to overcomply");
11. Richard Craswell & John E. Calfee, Deterrence and Uncertain Legal Standards, 2 J.L. Econ. & Org. 279, 280 (1986) (similar);
12. A. Mitchell Polinsky & Steven Shavell, Punitive Damages: An Economic Analysis, 111 Harv. L. Rev. 869, 873 (1998) (observing that "if injurers are made to pay more than for the harm they cause, wasteful precautions may be taken . . . and risky but socially beneficial activities may be undesirably curtailed").
13. On spillovers and whether the law should do something about them, see Brett M. Frischmann & Mark A. Lemley, Spillovers, 107 Colum. L. Rev. 257 (2007) (arguing why the law should not strive to internalize informational spillovers and other positive externalities).
14. 17 U.S.C. § 504(a)(1) (2000) (stating that a copyright infringer is liable for any of "the copyright owner's actual damages and any additional profits of the infringer").
15. 17 U.S.C. § 504(c)(2).
16. And for companies whose business plans depend on fair use, the results can be disastrous. See, e.g., UMG Recordings v. MP3.com, No. 00-CIV-472(JSR), 2000 WL 1262568, at *6 (S.D.N.Y. Sept. 6, 2000) (finding MP3.com liable for approximately $118 million in statutory damages);
17. see also J. Cam Barker, Note, Grossly Excessive Penalties in the Battle Against Illegal File-Sharing: The Troubling Effects of Aggregating Minimum Statutory Damages for Copyright Infringement, 83 Tex. L. Rev. 525, 545-49 (2004) (discussing the punitive nature of statutory damages for copyright infringement).
18. On the connection between fair use and transaction costs, see Professor Wendy Gordon's classic, Fair Use as Market Failure, 82 Colum. L. Rev. 1600, 1608, 1614-15 (1982) (listing high transaction costs as a prerequisite to a fair use finding).
19. For an excellent discussion, see James Gibson, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale L.J. 882, 887-95 (2007);
20. Mark A. Lemley, Property, Intellectual Property, and Free Riding, 83 Tex. L. Rev. 1031, 1041 (2005).
21. See Oren Bar-Gill & Gideon Parchomovsky, The Value of Giving Away Secrets, 89 Va. L. Rev. 1857, 1858 (2003) (discussing the effect of strategic holdups on bargaining between rightsholders and potential improvers in patent law). The discussion applies with equal force to negotiations over copyrights.
22. Any overinvestment in precautions is socially wasteful. See generally Guido Calabresi, The Costs of Accidents (1970).
23. Eyes on the Prize: America's Civil Rights Years, 1954-1965 (Blackside, Inc. & PBS Video 1986);
24. Eyes on the Prize II: America at the Racial Crossroads, 1965-1985 (Blackside, Inc. & PBS Video 1990).
25. See Guy Dixon, How Copyright Could Be Killing Culture, Globe & Mail (Toronto), Jan. 17, 2005, at R1 (noting that the footage of protest marches and police confrontations remain under copyright);
26. Lisa Helem, Civil Rights: A Televised Movement?, Newsweek, Feb. 14, 2005, at 8, 8 (noting that the footage of the Montgomery bus boycotts remains under copyright);
27. see also Colleen Long, Documentary Raises Copyright Issues, Cin. Post, Feb. 5, 2005, at A13 (noting that copyright clearance issues also prohibited the use of "[a] touching and intimate scene in the film [that] shows staff members singing 'Happy Birthday' to Martin Luther King Jr. on his 39th, and last, birthday").
28. It now appears that, due to charitable contributions of approximately $850,000, PBS has been able to reacquire a license to broadcast the series. See Press Release, PBS News, Eyes on the Prize, Produced by Blackside, Returns to PBS on American Experience (Jan. 14, 2006), available at http://www.pbs.org/aboutpbs/news/20060114_eyesontheprize.html.
29. See Kelly v. Arriba Soft Corp., 336 F.3d 811, 817-22 (9th Cir. 2003) (holding that the reproduction of copyrighted works for use as thumbnails in a search engine is a fair use under the Copyright Act).
30. See Jeffrey Toobin, Google's Moon Shot, New Yorker, Feb. 5, 2007, at 30, 30.
31. While fair use safe harbors found their way into the laws of Australia, Canada, and the United Kingdom, they have never been a part of the law of the United States. Moreover, they have received only scant attention from a handful of legal scholars who have summarily rejected them. See infra note 98 and accompanying text (discussing scholars who have rejected the notion of clarifying fair use with rules).
32. For a full discussion of the safe harbor limits, see infra Section II.C.
33. See Campbell v. Acuff-Rose Music, 510 U.S. 569, 574-94 (1994).
34. But see Rebecca Tushnet, Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 Yale L.J. 535 (2004) (arguing that fair use in its current form hampers free speech).
35. Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified in scattered sections of 17 U.S.C).
36. See, e.g., Christopher Sprigman, Reform(aliz)ing Copyright, 57 Stan. L. Rev. 485, 527 (2004).
37. See, e.g., Eric A. Posner, Law and Social Norms 19-21 (2000) (describing pooling equilibria in the law).
38. William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. Legal Stud. 325, 327 (1989).
39. Id. at 333.
40. For a discussion of ringtones, see infra notes 146-148 and accompanying text. As to whether end-users might attempt to circumvent the law by reassembling entire songs from ten second segments, see the discussion of strategic abuse in Section III.C.
41. See Dan Hunter & F. Gregory Lastowka, Amateur-to-Amateur, 46 Wm. & Mary L. Rev. 951, 955-56 (2004) (discussing the ascent of user-based content).
42. See, e.g., Lawrence Lessig, Creative Economies, 1 Mich. St. L. Rev 33, 35 (2006) (characterizing culture and knowledge as remix).
43. See, e.g., Justin Hughes, The Philosophy of Intellectual Property, 77 Geo. L.J. 287 (1988) (discussing the leading philosophical justifications for intellectual property protection).
44. This is evident from the intellectual property clause in the Constitution that empowers Congress "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U.S. Const. art. I, § 8, cl. 8.
45. See, e.g., Richard P. Adelstein & Steven I. Perez, The Competition of Technologies in Markets for Ideas: Copyright and Fair Use in Evolutionary Perspective, 5 Int'l Rev. L. & Econ. 209, 218 (1985); Gordon, supra note 15, at 1610; Landes & Posner, supra note 30, at 326.
46. See, e.g., Robert Cooter & Thomas Ulen, Law and Economics 46-48 (1st ed. 1988);
47. Richard Cornes & Todd Sandler, The Theory of Externalities, Public Goods, and Club Goods 6-7 (1986);
48. Edwin Mansfield, Principles of Macroeconomics 400-04 (6th ed. 1989).
49. See Cornes & Sandler, supra note 38, at 6.
50. See id. at 160; see also Patrick Croskery, Institutional Utilitarianism and Intellectual Property, 68 Chi.-Kent L. Rev. 631, 632 (1993).
51. See William M. Landes & Richard A. Posner, The Economic Structure of Intellectual Property Law 19-20 (2003).
52. See, e.g., Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 Harv. L. Rev. 281, 299-302 (1970) (discussing the competitive advantages authors would retain even in the absence of copyright protection).
53. See, e.g., Barry W. Tyerman, The Economic Rationale for Copyright Protection for Published Books: A Reply to Professor Breyer, 18 UCLA L. Rev. 1100, 1108-13 (1971) (addressing the "difficulties with the economic argument for [the] abolition of copyright protection for published books");
54. see also Carla Hesse, Publishing and Cultural Politics in Revolutionary Paris, 1789-1810 (1991) (detailing the harm caused to the publishing industry by the elimination of copyright protection in the wake of the French Revolution).
55. See Steven Shavell, Foundations of Economic Analysis of Law 138-44 (2004) (discussing the social value of information and the optimal level of its production).
56. U.S. Const. art. I, § 8, cl. 8.
57. See, e.g., Dotan Oliar, Making Sense of the Intellectual Property Clause: Promotion of Progress as a Limitation on Congress's Intellectual Property Power, 94 Geo. L.J. 1771 (2006) (positing that the promotion of science and useful art is a limitation on Congress's power to enact intellectual property laws); Lawrence B. Solum, Congress's Power to Promote the Progress of Science: Eldred v. Ashcroft, 36 Loy. L.A. L. Rev. 1, 19-20 (2002) (discussing the means-end structure of the intellectual property clause);
58. Kevin A. Goldman, Comment, Limited Times: Rethinking the Bounds of Copyright Protection, 154 U. Pa. L. Rev. 705, 739 (2006).
59. See Harper & Row, Publishers v. Nation Enters., 471 U.S. 539, 558 (1985) ("By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas."); see also Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection in Works of Information, 90 Colum. L. Rev. 1865, 1873 (1990) ("[T]he 1710 English Statute of Anne, the 1787 United States Constitution, and the 1790 United States federal copyright statute all characterized copyright as a device to promote the advancement of knowledge.").
60. See Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1261-62 (11th Cir. 2001) (noting that the copyright scheme is designed to promote learning).
61. 17 U.S.C. § 106 (2000).
62. Although the circuit courts have articulated several variations of the infringement inquiry, they are generally unified in holding that infringement hinges not on a finding of precise or exact copying, but rather on a finding that some manner of copying did occur, that the material actually copied was protected by copyright, and that the amount of copying was "substantial. " See Alan Latman, "Probative Similarity" as Proof of Copying: Toward Dispelling Some Myths in Copyright Infringement, 90 Colum. L. Rev. 1187, 1188-89 (1990).
63. Cf. Frischmann & Lemley, supra note 11 (analyzing the manner in which the inability of intellectual property owners to capture the full value of their works encourages greater innovation and increases social welfare).
64. See, e.g., Baker v. Selden, 101 U.S. 99, 100-01 (1879) (establishing the idea/expression dichotomy); Alexander v. Haley, 460 F. Supp. 40, 45 (S.D.N.Y. 1978) (discussing the Scènes à Faire doctrine).
65. See 17 U.S.C. §§ 301-305.
66. See 17 U.S.C. § 107.
67. See Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16, 30 (1913) (distinguishing rights from privileges);
68. see also David R. Johnstone, Debunking Fair Use Rights and Copyduty Under U.S. Copyright Law, 52 J. Copyright Soc'y U.S.A. 345, 368-70 (2005) (employing Hohfeld's framework to analyze the fair use doctrine).
69. Horace G. Ball, The Law of Copyright and Literary Property 260 (1944) (emphasis added).
70. When Justice Story first laid the groundwork for the doctrine's importation into American law in Folsom v. Marsh, he consciously followed the English model, eschewing any inquiry into the public interest and focusing solely on whether the defendant's use was, on its own terms, "fair." 9 F. Cas. 342, 349 (C.C.D. Mass. 1841) (No. 4901).
71. See Gideon Parchomovsky, Fair Use, Efficiency, and Corrective Justice, 3 Legal Theory 347, 352 (1997) (discussing the interpretive problems arising from the statutory text).
72. 17 U.S.C. § 107.
73. H.R. Rep. No. 94-1476, at 65 (1976), as reprinted in 1976 U.S.C.C.A.N. 5659, 5679.
74. See Michael J. Madison, Rewriting Fair Use and the Future of Copyright Reform, 23 Cardozo Arts & Ent. L.J. 391, 402 (2005) ("The substantive emptiness of fair use makes it something of a dumping ground for copyright analysis that courts can't manage in other areas.").
75. See Parchomovsky, supra note 58, at 348 n.7 (demonstrating this point by reviewing the case law).
76. Leval, supra note 5, at 1105-06.
77. Campbell v. Acuff-Rose Music, 510 U.S. 569, 596 (1994) (Kennedy, J., concurring) (citation omitted).
78. See, e.g., R. Polk Wagner, The Perfect Storm: Intellectual Property and Public Values, 74 Fordham L. Rev. 423, 426-27 (2005) ("[E]ven at [a high] level of generality, there is little more that can be usefully said about the division between fair and unfair uses in practice: The 'know it when you see it' nature of the analytic approach in this context simply precludes such observations.");
79. see also David Nimmer, "Fairest of Them All" and Other Fairy Tales of Fair Use, Law & Contemp. Probs., Winter/Spring 2003, at 263, 278-84 (employing a statistical analysis to demonstrate the unpredictability of the fair use doctrine).
80. Wagner, supra note 65, at 427-28.
81. Id. at 428-29.
82. Mental state remains relevant to the issue of secondary liability. See Metro-Goldwyn-Mayer Studios v. Grokster, Ltd., 545 U.S. 913, 930 (2005) ("One infringes contributorily by intentionally inducing or encouraging direct infringement, and infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it." (citations omitted)).
83. See, e.g., Bright Tunes Music Corp. v. Harrisongs Music, 420 F. Supp. 177, 180-81 (S.D.N.Y. 1976).
84. Shavell, supra note 44, at 180.
85. See, e.g., R. Polk Wagner, Information Wants to Be Free: Intellectual Property and the Mythologies of Control, 103 Colum. L. Rev. 995 (2003) (explaining why copy-righted information can never be fully appropriated and assessing the implications of this fact for policymaking).
86. 17 U.S.C. § 503 (2000).
87. 17 U.S.C. § 504(b).
88. 17 U.S.C. § 504(c)(2). If the infringement is not willful, the maximum amount a plaintiff can collect is $30,000. § 504(c)(1).
89. See, e.g., Tushnet, supra note 26, at 583-84 ("It should be no surprise that publishers thus require permission for even brief quotations . . . ."). In addition to fear of costly litigation, there is a secondary element of self-interest, as these same publishers profit when follow-on artists choose to pay licensing fees to use their works. See Kate O'Neill, Against Dicta: A Legal Method for Rescuing Fair Use from the Right of First Publication, 89 Cal. L. Rev. 369, 401 (2001) (noting that "holders of substantial copyright interests have an incentive to narrow the scope of fair use, establish a custom of requiring permission for rights owned, earn revenue, and create a measure of market impact should they wish to challenge unlicensed uses of materials for which they hold the copyright").
90. Gibson, supra note 16.
91. Gordon, supra note 15, at 1608.
92. See Randal C. Picker, From Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and the Propertization of Copyright, 70 U. Chi. L. Rev. 281, 295 (2003) ("As transaction costs drop through a combination of institutional arrangements such as the Copyright Clearance Center, and as the internet creates a ubiquitous structure for micro-transactions - microconsents with micropayments - fair use might cease to play a meaningful role.").
93. See Tom W. Bell, Fair Use vs. Fared Use: The Impact of Automated Rights Management on Copyright's Fair Use Doctrine, 76 N.C. L. Rev. 557, 564-67 (1998).
94. See Nancy Ramsey, The Hidden Cost of Documentaries, N.Y. Times, Oct. 16, 2005, at C13.
95. See generally Patricia Aufderheide & Peter Jaszi, Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers (2004), available at http://www.centerforsocialmedia.org/files/pdf/ UNTOLDSTORIES_Report.pdf.
96. See supra notes 19-20 and accompanying text.
97. Enron: The Smartest Guys in the Room (Jigsaw Productions 2005).
98. See Elaine Dutka, Copyright Isn't the Last Word, L.A. Times, Nov. 18, 2005, at 16.
99. See Dixon, supra note 20, at R1.
100. Email from Barry Nalebuff, Milton Steinbach Professor of Management, Yale School of Management, to Gideon Parchomovsky, Professor of Law, University of Pennsylvania Law School (Feb. 20, 2007, 14:57:20 EST) (on file with the Virginia Law Review Association).
101. Id.
102. Tushnet, supra note 26, at 585.
103. 420 F. Supp. 177, 180-81 (S.D.N.Y. 1976).
104. See, e.g., Lipton v. The Nature Co., 71 F.3d 464 (2d Cir. 1995); U.S. Payphone v. Executives Unlimited of Durham, No. 89-1081, 1991 WL 64957, at *2 (4th Cir. Apr. 29, 1991); see also R. Anthony Reese, Innocent Infringement in Copyright Law 7-17 (unpublished manuscript, on file with the Virginia Law Review Association) (discussing the copying of works believed to be in the public domain).
105. See generally Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (1992); Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 Duke L.J. 557 (1992);
106. Pierre J. Schlag, Rules and Standards, 33 UCLA L. Rev. 379 (1985);
107. Cass R. Sunstein, Problems with Rules, 83 Cal. L. Rev. 953 (1995).
108. See, e.g., Kaplow, supra note 90, at 560.
109. See, e.g., id. at 564-65.
110. See, e.g., Sunstein, supra note 90, at 976.
111. See, e.g., id.
112. See, e.g., id. at 995-96 (noting that "[r]ules [c]an [b]e [d]ehumanizing and [p]rocedurally [u]nfair").
113. See, e.g., id. at 976-77.
114. See, e.g., Tushnet, supra note 26, at 588 ("[T]he law might limit what counts as sufficient copying to constitute reproduction or creation of a derivative work, so that activities such as sampling and quoting would clearly be noninfringing."). Tushnet, however, also suggests that "there is no way to know in advance how much copying is too much." Id. We disagree with that assertion - at a low enough threshold, it is possible to make that determination ex ante. See also Lawrence Lessig, Free Culture 295 (2004) (advocating for clearer and narrower lines demarcating the scope of protection for derivative works);
115. Joseph P. Liu, Regulatory Copyright, 83 N.C. L. Rev. 87, 151-52 (2004) (suggesting that the Copyright Office could be given the regulatory authority to promulgate rules and safe harbors).
116. See, e.g., Dan L. Burk, Muddy Rules for Cyberspace, 21 Cardozo L. Rev. 121, 140 (1999) ("[F]air use appears to be employed in situations of high transaction costs, where a muddy entitlement may be appropriate. . . . The 'muddy' four-part balancing standard of fair use allows courts to reallocate what the market cannot.");
117. Michael W. Carroll, Fixing Fair Use, 85 N.C. L. Rev. 1087, 1147 (2007) (arguing that rules for fair use would lack sufficient context-sensitivity); Madison, supra note 61, at 396 ("Since the complexity of the copyright statute already compares unfavorably to the tax code, it seems unwise to 'solve' fair use by adding more details to the statute.");
118. Matthew Sag, God in the Machine: A New Structural Analysis of Copyright's Fair Use Doctrine, 11 Mich. Telecomm. & Tech. L. Rev. 381, 435 (2005) (arguing that a flexible fair use standard is needed to allow courts to adapt copyright protection to new innovations);
119. see also Jason Scott Johnston, Bargaining Under Rules Versus Standards, 11 J.L. Econ. & Org. 256, 257 (1995) ("When the parties bargain over the entitlement when there is private information about value and harm, bargaining may be more efficient under a blurry balancing test than under a certain rule.").
120. The Gentlemen's Agreement and the Problem of Copyright, 2 J. Documentary Reprod. 29, 31-33 (1939).
121. See Peter Hirtle, Research, Libraries, and Fair Use: The Gentlemen's Agreement of 1935, 53 J. Copyright Soc'y U.S.A. 545, 545-46 (2006).
122. See The Gentlemen's Agreement, supra note 99, at 31.
123. Randall Coyne, Rights of Reproduction and the Provision of Library Services, 13 U. Ark. Little Rock L.J. 485, 488-89 (1991).
124. Williams & Wilkins Co. v. United States, 487 F.2d 1345, 1362 (Ct. Cl. 1973), aff'd by an equally divided Court, 420 U.S. 376 (1975).
125. Pub. L. No. 94-553, § 108, 90 Stat. 2541, 2546-48 (codified as amended at 17 U.S.C. § 108 (2000)).
126. Id. § 108(d).
127. See Hirtle, supra note 100, at 3-4 (noting that the amount of copying that would be permissible was consciously left out of the discussion).
128. See, e.g., Office of Legal Counsel, Dep't of Justice, Whether and Under What Circumstances Government Reproduction of Copyrighted Materials Is a Noninfringing "Fair Use" Under Section 107 of the Copyright Act of 1976, at 15 (Apr. 30, 1999), available at http://www.usdoj.gov/olc/ pincusfinal430.htm ("If a certain library practice is noninfringing under the specific and detailed provisions of section 108(a) (as confined by section 108(g)(2)), a library need not be concerned about how that particular photocopying practice would fare under section 107's more complex and indeterminate fair use standards.").
129. See, e.g., Am. Geophysical Union v. Texaco, Inc., 60 F.3d 913, 916 (2d Cir. 1994) ("We do not deal with the question of copying by an individual, for personal use in research or otherwise (not for resale), recognizing that under the fair use doctrine or the de minimis doctrine, such a practice by an individual might well not constitute an infringement.").
130. See Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals, H.R. Rep. No. 94-1476, at 68-70 (1976), as reprinted in 1976 U.S.C.C.A.N. 5659, 5681-83;
131. see also Kenneth D. Crews, The Law of Fair Use and the Illusion of Fair-Use Guidelines, 62 Ohio St. L.J. 599, 615-19 (2001) (discussing the "Classroom Guidelines").
132. Similar frameworks were promulgated to address the copying of musical works and television broadcasts. See Guidelines for Off-Air Recordings of Broadcast Programming for Educational Purposes, H.R. Rep. No. 97-495, at 8-9 (1982);
133. Guidelines for Educational Uses of Music, H.R. Rep. No. 94-1476, at 70-71; see also Crews, supra, at 619-21 (discussing the "Music Guidelines" and "Off-Air Videotaping Guidelines").
134. H.R. Rep. No. 94-1476, at 67.
135. Id. at 67-70.
136. Id. at 68.
137. Id. at 68-69.
138. Id. at 69.
139. Id.
140. See 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.05[E][3][a] (4th ed. 2007); Crews, supra note 109, at 619 ("The guidelines may well offer more certainty, but they still raise their own questions and pose their own problems for application.").
141. H.R. Rep. No. 94-1476, at 68-69 (defining special works as "[c]ertain works in poetry, prose or in 'poetic prose' which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience [and which] fall short of 2,500 words in their entirety").
142. Id. at 69.
143. Id.
144. See Marcus v. Rowley, 695 F.2d 1171, 1178 (9th Cir. 1983) (noting that the Guidelines are "instructive on the issue of fair use" but "not controlling on the court").
145. H.R. Rep. No. 94-1476, at 72.
146. See, e.g., Am. Geophysical Union v. Texaco, Inc., 60 F.3d 913, 919 n.5 (2d Cir. 1994) (noting that the Guidelines are not binding and exist only as persuasive authority); Basic Books v. Kinko's Graphics Corp., 758 F. Supp. 1522, 1536 (S.D.N.Y. 1991) (citing Nimmer & Nimmer, supra note 116, at § 13.05[E][3][a], for the proposition that "a use which is within the [Classroom] Guidelines may exceed fair use").
147. For further academic criticisms, see Ann Bartow, Educational Fair Use in Copyright: Reclaiming the Right to Photocopy Freely, 60 U. Pitt. L. Rev. 149, 159-63 (1998) (discussing numerous flaws in the Classroom Guidelines);
148. Carol M. Silberberg, Preserving Educational Fair Use in the Twenty-First Century, 74 S. Cal. L. Rev. 617, 636-39 (2001) (same).
149. See H.R. Rep. No. 94-1476, at 68 ("The purpose of the following guidelines is to state the minimum standards of educational fair use under Section 107 . . . .").
150. The two main criticisms levied against the Guidelines are that they are too restrictive and too unpredictable. See Bartow, supra note 123, at 162-63. In practice, of course, greater predictability would likely require greater restrictions, while less restrictive rules probably would be accompanied by less predictability.
151. Pub. L. No. 109-9, 119 Stat. 218.
152. See, e.g., Michael Janofsky, Utah Shop Offers Popular Videos with the Sex and Violence Excised, N.Y. Times, Jan. 31, 2001, at A11.
153. See, e.g., Rick Lyman, Hollywood Balks at High-Tech Sanitizers: Some Video Customers Want Tamer Films, and Entrepreneurs Rush to Comply, N.Y. Times, Sept. 19, 2002, at E1.
154. See Press Release, Directors Guild of America, DGA Files Lawsuit Against Entities that Provide Unauthorized Altered Versions of Videocassettes and/or DVDs (Aug. 20, 2002), http://www.viewerfreedom.org/legal/20020820DGA/ DGAfileslawsuit.PDF; see also Second Amended Complaint and Jury Demand at ¶¶ 16-17, Clean Flicks of Colo., L.L.C. v. Soderbergh, 433 F. Supp. 2d 1236 (D. Colo. 2006) (No. 02-M-1662).
155. The first sale doctrine distinguishes the rights to a copyrighted work from the rights to an embodiment of that work. Once someone lawfully acquires a book, for example, she may resell that copy without violating the copyright holder's exclusive right to distribute the work. See 17 U.S.C. § 109(a) (2000).
156. See Second Amended Complaint and Jury Demand, supra note 129, at ¶ 15 ("Plaintiffs disagree that their third party editing of commercial movies violates any trademark or copyright laws and believe that their actions set forth above are free speech and/or fair use and are protected by the First Amendment to the U.S. Constitution.").
157. The FMA was passed as Title II of the Family Entertainment and Copyright Act of 2005, Pub. L. No. 109-9, § 167, 119 Stat. 218, 223-24.
158. See id. § 202(a)(3), 119 Stat, at 222.
159. Clean Flicks of Colo., 433 F. Supp. 2d at 1240, 1243.
160. This also distinguishes the FMA from the statutory license that permits cover versions of songs. See 17 U.S.C. § 115(a)(2). While the license requires that "the arrangement shall not change the basic melody or fundamental character of the work," id., the FMA contains no such limitation; indeed, it is rooted in protecting a behavior designed to change a work's fundamental character.
161. Landes & Posner, supra note 41, at 216 n.16.
162. For example, Dr. Seuss famously wrote Green Eggs and Ham using only fifty different words. See Louis Menand, Cat People: What Dr. Seuss Really Taught Us, New Yorker, Dec. 23 & 30, 2002, at 148, 152. While an end-user might be permitted to copy all fifty different words, and even to repeatedly use those words in varying combinations, an attempt to assemble those words into a recreation of the original work in excess of three hundred words would clearly exceed the safe harbor threshold.
163. Cf. Jorge Luis Borges, Pierre Menard, Author of Don Quixote, in Ficciones 29, 32 (Anthony Bonner & Emecé Editores trans., Alfred A. Knopf, Inc. 1993) (1939) (describing a fictional author's attempt to independently conceive and write a novel that mimics, word for word, the text of Miguel de Cervantes's Don Quixote).
164. We selected the lower bound - fifteen percent of a one-hundred-word work - to correspond roughly to two lines from a sonnet and the upper bound - three hundred words from a longer piece - to capture passages approximately the size of Hamlet's "To be or not to be" soliloquy. See William Shakespeare, Hamlet, Prince of Denmark act 3, sc. 1.
165. See, e.g., H.R. Rep. No. 94-1476, at 67-70 (1976) (discussing the Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions), as reprinted in 1976 U.S.C.C.A.N. 5659, 5680-83;
166. Bruce A. Lehman, U.S. Patent and Trademark Office, The Conference on Fair Use: Final Report to the Commissioner on the Conclusion of the Conference on Fair Use § 4.2.1, at 53 (1998).
167. See H.R. Rep. No. 94-1476, at 69.
168. For a discussion of the applicability of fair use to haiku, see Posting of David A. Giacalone to f/k/a, Haiku and the Fair Use Doctrine, http://blogs.law.harvard.edu/ethicalesq/haiku-and-the-fair-use-doctrine/ (Jan. 16, 2004, 16:57 EST).
169. For example, one might wish to contrast the studio recording of "Maggie's Farm" that Bob Dylan released on Bringing It All Back Home (Columbia Records 1965), with the faster, more controversial version performed that year at the Newport Music Festival (and captured by Martin Scorsese in the documentary No Direction Home (Paramount Pictures 2005)). Under the safe harbor, one could copy five seconds from each, or any other combination of the two, so long as the finished work contained no more than ten total seconds worth of appropriation embodying the "Maggie's Farm" musical composition.
170. Eminem, Stan, on The Marshall Mathers LP (Interscope Records 2000).
171. Dido, Thank You, on Sliding Doors: Music from the Motion Picture (MCA 1998).
172. See 17 U.S.C. §§ 101, 103 (2000); see also Feist Publ'ns v. Rural Tel. Serv. Co., 499 U.S. 340, 350-51 (1991); Key Publ'ns v. Chinatown Today Publ'g Enters., 945 F.2d 509, 514-16 (2d Cir. 1991).
173. David W. Opderbeck, Peer-to-Peer Networks, Technological Evolution, and Intellectual Property Reverse Private Attorney General Litigation, 20 Berkeley Tech. L.J. 1685, 1743 (2005) ("The music sampling market is beginning to mature as licensing terms become standardized and royalty-free sample content fills a market niche.").
174. In 2005, for example, sales of ringtones in the United States exceeded $600 million. Jeff Leeds, The Loudest Ringtone: Hello? It's 50 Cent Calling Collect, N.Y. Times, Dec. 25, 2005, at AR2.
175. Paul R. La Monica, Ringtones: The Sound of Money, CNNMoney.com, Apr. 12, 2006, http://money.cnn.com/2006/04/12/commentary/mediabiz/ ("[M]usic executives say that ringtones serve as a marketing tool that can help lift sales of singles and albums.").
176. While some might argue with this amount on the grounds that copying thirty seconds from a film could, for example, reveal a major plot twist, we do not find this concern compelling, as critics already have the ability to act as "spoilers" under the current framework. See, e.g., Michael Blowen, The Bickering Game, Boston Globe, Mar. 23, 1993, at 54 (describing critic Gene Siskel's on-air revelation of the plot twist to The Crying Game).
177. See The Sorcerer's Apprentice, in Fantasia (Walt Disney Pictures 1940).
178. See, e.g., The NFL's Greatest Hits (NFL Films 1992).
179. But see New Boston Television v. Entm't Sports Programming Network, No. 81-1010, 1981 WL 1374, at *2 (D. Mass. Aug. 3, 1981) (rejecting a fair use
180. Forrest Gump (Paramount Pictures 1994).
181. See Leora Broydo, Attack of the Celebrity Vacuum-Cleaner-Salesman Ghouls, Salon, July 8, 1997, http://www.salon.com/july97/media/media970708.html.
182. See The Internet Movie Database Filmography of Samuel L. Jackson, http://imdb.com/name/nm0000168/ (last visited May 15, 2007) (listing the actor's film and television appearances).
183. See, e.g., Benjamin Toff, 'Simpsons' Milestone Boosts Ratings, N.Y. Times, May 22, 2007, at E2 (noting that 400 episodes of The Simpsons have been produced).
184. The National Lampoon used a similar process to create "The Lost Episode" of Seinfeld. The Lampoon crafted a new narrative arc by weaving together scenes from the Seinfeld television program with the infamous video of Michael Richards' racist tirade during a stand-up comedy performance. See Greg Connors, Keeper of the Comedy Flame, Buffalo News, Feb. 4, 2007, at M11.
185. For example, copyright law already extends independent protection to fictional characters. See, e.g., Gaiman v. McFarlane, 360 F.3d 644, 660-62 (7th Cir. 2004) (noting that fictional characters are independently copyrightable); Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 753-55 (9th Cir. 1978) (holding that Disney characters such as Mickey and Minnie Mouse are copyrightable as distinct entities); Detective Comics v. Bruns Publ'ns, 111 F.2d 432, 432-34 (2d Cir. 1940) (holding that the character of Superman was infringed by the similar "attributes and antics" of the Wonderman character). Although the Ninth Circuit once notoriously held that Dashiell Hammett's detective Sam Spade was not copyrightable as a distinct character, Warner Bros. Pictures v. CBS, 216 F.2d 945 (9th Cir. 1954), that decision has been roundly criticized and effectively overturned. See Gaiman, 360 F.3d at 660 ("The Ninth Circuit has killed the [Sam Spade] decision, see Olson v. National Broadcasting Co., 855 F.2d 1446, 1452 and n.7 (9th Cir. 1988); Walt Disney Productions v. Air Pirates, supra, 581 F.2d at 755 and n.11, though without the usual obsequies . . . .").
186. See generally Bela G. Lugosi, California Expands the Statutory Right of Publicity For Deceased Celebrities While Its Courts Are Examining the First Amendment Limitations of that Statute, 10 DePaul-LCA J. Art & Ent. L. 259, 261, 275, 278 (2000).
187. Furthermore, some content owners have concluded that permitting such uses is beneficial to their own interests. See, e.g., Slicing, Mashing Shows OK with CBS, Chi. Sun-Times, Jan. 10, 2007, at 61.
188. The ten percent maximum is employed to prevent certain scenarios from falling within the safe harbor, such as the conversion of a single photograph into a thirty-second short film set to repeat over and over again, making it virtually indistinguishable from a digital image.
189. Cf. 37 C.F.R. § 253.8 (2006) (setting the royalty rates for the use of pictorial works by public broadcasting entities, with varying rates depending on whether the use of a work is designated a "featured" display or a "background or montage" display).
190. See Tushnet, supra note 26, at 588 ("Requiring complete or near-complete copying to find infringement would be most helpful with literary works and least helpful with visual works, which often need to be shown in full for 'quotation' to be effective."); see also Crews, supra note 109, at 634 (noting that "[t]he use of visual images . . . will most likely require the entire work, a fact that most often weighs against fair use").
191. It is worth noting that digital compression allows for the creation of works that contain many more than twenty-four frames per second. See, e.g., Candus Thomson, Speed and Danger Rise; Falls, Injuries Are Accumulating at the Winter Games, Balt. Sun, Feb. 15, 2006, at 1A (noting that NBC's Olympic coverage used a camera that captured two thousand frames per second).
192. 17 U.S.C. § 101 (2000).
193. 248 U.S. 215, 235, 245-46 (1918).
194. But cf. Bridgeport Music v. Dimension Films, 383 F.3d 390, 398 (6th Cir. 2004) ("Get a license or do not sample.").
195. See, e.g., Castle Rock Entm't v. Carol Publ'g Group, 150 F.3d 132, 135, 146 (2d Cir. 1998) (concluding that a Seinfeld trivia book was not protected by fair use). While the safe harbor would apply to trivia questions that directly quote particular lines of dialogue, it would have little application to instances where the material copied is not words but broader concepts.
196. See supra notes 19-20 and accompanying text (discussing the struggle to secure the rights necessary to broadcast the documentary Eyes on the Prize).
197. See, e.g., Ringgold v. Black Entm't Television, 126 F.3d 70, 71-73, 81 (2d Cir. 1997) (finding that the use of a pictorial work that appeared on screen for less than thirty seconds was not so clearly fair use as to sustain defendant's motion for summary judgment).
198. See, e.g., Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1282 & n.6 (11th Cir. 2001) (Marcus, J., concurring) (noting that the Margaret Mitchell estate refuses to license Gone With The Wind to derivative works that deal with miscegenation or homosexuality). DC Comics is notoriously zealous in suppressing any suggestion of Batman and Robin as lovers. See, e.g., Jeet Heer, Pow! Wham! Permission Denied!, Lingua Franca, Mar. 2001, at 21, 21-22;
199. Gallery Told to Drop 'Gay' Batman, BBC News, Aug. 19, 2005, http://news.bbc.co.Uk/1/hi/entertainment/arts/4167032.stm.
200. See, e.g., Ty, Inc. v. Publ'ns Int'l, 292 F.3d 512, 520 (7th Cir. 2002) (noting that the manufacturer of Beanie Babies attempts to stifle criticism by requiring, in exchange for a license to publish Beanie Baby photographs in a collector's guide, the right to veto any text in the book).
201. See supra notes 21-22 and accompanying text (discussing Google Book Search).
202. See supra notes 146-148 and accompanying text (discussing music sampling and ringtones).
203. Lessig, supra note 34, at 37-38; see also Yochai Benkler, Coase's Penguin, or, Linux and The Nature of the Firm, 112 Yale L.J. 369, 374 (2002) (discussing the value of large-scale collaborations in information production).
204. Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified in part at 17 U.S.C. §§ 1201-1205 (2000)).
205. This is also referred to as Digital Rights Management ("DRM"). See, e.g., Edited & Excerpted Transcript of the Symposium on the Law & Technology of Digital Rights Management, 18 Berkeley Tech. L.J. 697, 760 (2003).
206. But see Brad Stone & Jeff Leeds, Amazon to Sell Music Without Copy Protection, N.Y. Times, May 17, 2007, at C1 (discussing the growing trend of distributing digital music files without encryption).
207. In some cases, the content distributors go to extreme lengths to ensure the material cannot be copied. See, e.g., Joe Morgenstern, The Screens Have Eyes, Wall St. J., Dec. 10-11, 2005, at P3.
208. See 17 U.S.C. § 1201(c); see also H.R. Rep. No. 105-551, pt. 2, at 86 (1998) (discussing the rejection of "an equivalent fair use defense").
209. See Hohfeld, supra note 55, at 30.
210. See Johnstone, supra note 55, at 368-70 (analyzing fair use in Hohfeldian terms).
211. This is assuming, of course, that the critic's review otherwise meets the requirements of fair use.
212. For example, the playwright could prohibit the use of photography to capture the performance, even if the film would be used solely for fair use purposes.
213. See 17 U.S.C. § 1201; see also Sharon R. King, Consumers Still Seem Resistant to Some New High-End Electronics, N.Y. Times, Mar. 8, 1999, at C1 (noting that several motion picture studios held off on releasing their most popular titles in DVD format, for fear that the copy protection would be circumvented).
214. See 17 U.S.C. § 1201(c)(1) ("Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.").
215. See, e.g., Neil Weinstock Netanel, Locating Copyright Within the First Amendment Skein, 54 Stan. L. Rev. 1, 80-81 (2001).
216. See, e.g., Electronic Frontier Foundation, Unintended Consequences: Seven Years Under the DMCA 1 (2006), http://www.eff.org/IP/DMCA/DMCA_unintended_v4. pdf.
217. Blade Runner (Warner Bros. 1982).
218. 17 U.S.C. § 1201(k)(2).
219. Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417, 444, 456 (1984) (holding that private, noncommercial time-shifting of television broadcasts is fair use). The DMCA also requires content distributors to provide authorized transmitting organizations (such as radio and television stations) the means to make ephemeral and archival copies of the encrypted works that they broadcast, and permits those organizations to circumvent the encryption if the content distributors fail to provide them with the means to do so "in a timely manner." See 17 U.S.C. § 112(a)(2). Another example is the Audio Home Recording Act, which requires digital audio recording devices to contain a "Serial Copy Management System" that allows end-users to make first generation copies of digital audio recordings, but encodes those copies with a tag to prevent anyone from making copies of those copies. 17 U.S.C. §§ 1001-1002.
220. Gibson, supra note 16, at 398 (footnote omitted).
221. This quotation may be apocryphal. Although generally attributed to Yogi Berra, it is also sometimes credited to computer scientist Jan L.A. van de Snepscheut. See Said What? Quotations: Theory Quotes, http://www.saidwhat.co.uk/ bio/theory (last visited May 16, 2007).
222. See supra notes 109-125 and accompanying text (discussing the Classroom Guidelines).
223. Eugene R. Quinn, Jr. & Michelle Beveridge, Legal Issues in Building Course Web Sites: Copyright Law for Academics, 26 Hamline L. Rev. 83, 117 (2002).
224. See Addison-Wesley Publ'g Co. v. N.Y. Univ., No. 82 CIV 8333 (ADS), 1983 WL 1134, at *2 (S.D.N.Y. May 31, 1983); see also Crews, supra note 109, at 641 ("For all practical purposes, the minimum standards of the original guidelines became maximum standards at NYU."); Robert A. Gorman, Copyright Conflicts on the University Campus: The First Annual Christopher A. Meyer Memorial Lecture, 47 J. Copyright Soc'y U.S.A. 291, 313 n.36 (2000) (noting that the settlement agreement in Addison-Wesley produced a "'chilling' effect on faculty members inclined to invoke broader fair use permissions").
225. See, e.g., Crews, supra note 109, at 697 (arguing that fair use guidelines should be flexible rather than rigid); Hillary Greene, Guideline Institutionalization: The Role of Merger Guidelines in Antitrust Discourse, 48 Wm. & Mary L. Rev. 771 (2006) (arguing that nonbinding guidelines are often treated in a precedent-like manner);
226. Gregory K. Klingsporn, The Conference on Fair Use (CONFU) and the Future of Fair Use Guidelines, 23 Colum.-VLA J.L. & Arts 101, 122 (1999) (arguing that "fair use guidelines should be primarily a statement of principles" and that the current system "encourages [the use of clearly defined examples of fair use] as a maximum rather than a minimum standard").
227. See Campbell v. Acuff-Rose Music, 510 U.S. 569, 572 (1994).
228. See Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417, 421 (1984).
229. Cf. Gibson, supra note 16, at 887-906 (discussing the problem of "doctrinal feedback" in copyright law, which encourages some copyright users to apply for licenses even when their intended use of copyrighted material would be a fair use and discourages others from attempting to use the copyrighted material at all); Wagner, supra note 65, at 426-29 (noting the increasing uncertainty among copyright users regarding whether their intended use will be protected by the fair use doctrine).
230. See, e.g., Harper & Row, Publishers, v. Nation Enters., 471 U.S. 539, 593 (1985) (Brennan, J., dissenting) ("The Nation's stated purpose of scooping the competition should under those circumstances have no negative bearing on the claim of fair use. Indeed the Court's reliance on this factor would seem to amount to little more than distaste for the standard journalistic practice of seeking to be the first to publish news."); Lee v. A.R.T. Co., 125 F.3d 580, 581 (7th Cir. 1997) (noting that "framing and other traditional means of mounting and displaying art do not infringe authors' exclusive right to make derivative works"); Triangle Publ'ns v. Knight-Ridder Newspapers, 626 F.2d 1171, 1176 (5th Cir. 1980) (giving weight to the fact that the alleged infringement took the form of "a comparative advertisement done in a manner which is generally accepted in the advertising industry").
231. See William W. Fisher III, Reconstructing the Fair Use Doctrine, 101 Harv. L. Rev. 1659, 1692 (1988) (noting the "tradition emphasizing the limited power of the positive law and the degree to which it must and should track customs and popular understandings - a tradition whose most insightful exponent was David Hume");
232. see also H.L.A. Hart, The Concept of Law 44-48 (2d ed. 1994) (discussing the role of custom in shaping law); David Hume, A Treatise of Human Nature 484-513 (Prometheus Books 1992) (1739) (discussing the role of custom in property law).
233. Cf. Hirtle, supra note 100, at 549 (noting that the Gentlemen's Agreement, despite its origins as a voluntary guideline, came to be viewed "as a defacto [sic] cap on the extent of acceptable reproduction by librarians and researchers").
234. Ass'n of Indep. Video & Filmmakers et al., Documentary Filmmakers' Statement of Best Practices in Fair Use 1 (Nov. 18, 2005), available at http://www.centerforsocialmedia.org/rock/backgrounddocs/bestpractices.pdf ("Fair use is shaped, in part, by the practice of the professional communities that employ it").
235. See, e.g., On Davis v. The Gap, Inc., 246 F.3d 152, 172-73 (2d Cir. 2001) (discussing the de minimis doctrine); Ringgold v. Black Entm't Television, 126 F.3d 70, 74-76 (2d Cir. 1997) (same).
236. See Harper & Row, 471 U.S. at 548, 564-65 (finding that the three to four hundred words copied constituted the "heart" of the original work); Dun & Bradstreet Software Servs. v. Grace Consulting, 307 F.3d 197, 208 (3d Cir. 2002) (finding that de minimis did not apply to the copying of twenty-seven lines of code from a 525,000 line program because those twenty-seven lines were of high qualitative value).
237. Tushnet, supra note 26, at 583.
238. Fisher v. Dees, 794 F.2d 432, 435 n.2 (9th Cir. 1986); see also On Davis, 246 F.3d at 173 (finding that "the de minimis doctrine is not applicable" because "the infringing item is highly noticeable").
239. Arguably, this could even be done by a single individual, claiming that each segment constituted a different "work."
240. This same logic could be applied with equal force to the safe harbors for appropriating portions of literary or musical works.
241. 545 U.S. 913, 940-41 (2005).
242. Cf. Tegal Corp. v. Tokyo Electron Co., 248 F.3d 1376, 1378-79 (Fed. Cir. 2001) (citing Fromberg, Inc. v. Thomhill, 315 F.2d 407, 411 (5th Cir. 1963), to argue that the term "active inducement" "is as broad as the range of actions by which one in fact causes, or urges, or encourages, or aids another to infringe a patent"); Fromberg, 315 F.2d at 411 n.11 (quoting Walker on Patents 1764-71 (Anthony William Deller ed., Supp. 1962), to note that active inducement includes "passing on information intending to bring about infringement").
243. See Jennifer S. Lee, Digital Video Recorders: First, ReplayTV 4000 Must Face the Courts, N.Y. Times, Dec. 31, 2001, at C3 (noting that the makers of digital video recorders made sure that their devices were capable of "substantial noninfringing uses").
244. Posting of Lonny Pugh to LA.comfidential, http://www.la.com/blog/6541437. html?month=March&year=2007 (Mar. 16, 2007, 01:00 PDT).
245. Laura M. Holson, Cellphone Content, Straight From the Creators, N.Y. Times, Feb. 27, 2006, at C1.
246. For discussion of this challenge in a more general property context, see Abraham Bell & Gideon Parchomovsky, A Theory of Property, 90 Cornell L. Rev. 531 (2005).
247. William D. Nordhaus, Invention, Growth, and Welfare: A Theoretical Treatment of Technological Change 76-86 (1969).
248. Fisher, supra note 201, at 1718 (cautioning that "[i]t is hard to imagine a judge making even rough guesses at some of the figures critical to the calculus").
249. Netanel, supra note 186, at 23.
250. Cf. Eldred v. Ashcroft, 537 U.S. 186, 219-20 (2003) (describing fair use as a First Amendment safeguard).
251. See Gibson, supra note 16, at 887.
252. Guido Calabresi, The Pointlessness of Pareto: Carrying Coase Further, 100 Yale L.J. 1211, 1212 (1991).