The questionable use of custom in intellectual property

Virginia Law Review

Volumn 93, Issue 8, 2007, Pages 1899-1982

  Rothman, Jennifer E ^a  

^a LOYOLA LAW SCHOOL   (United States)

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EID: 38749104738     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (487)

1. Custom has been used to mean many different things, from regularly occurring industry practices, to social norms, to ongoing practices that have existed from time immemorial. See, e.g., Lisa Bernstein, The Questionable Empirical Basis of Article 2's Incorporation Strategy: A Preliminary Study, 66 U. Chi. L. Rev. 710, 712 n.7 (1999) (defining custom as "an unwritten practice that would be considered a usage of trade under the [Uniform Commercial] Code" or that would be used to interpret a contract under the Code);
2. Richard A. Epstein, International News Service v. Associated Press: Custom and Law as Sources of Property Rights in News, 78 Va. L. Rev. 85, 85 (1992) [hereinafter Epstein, INS] (defining custom in unfair competition context as "what the community has customarily regarded as binding social rules");
3. Richard A. Epstein, The Path to The T.J. Hooper: The Theory and History of Custom in the Law of Tort, 21 J. Legal Stud. 1,1 (1992) [hereinafter Epstein, The T.J. Hooper] (defining custom in the tort context as industry practices);
4. Jody S. Kraus, Legal Design and the Evolution of Commercial Norms, 26 J. Legal Stud. 377, 377 n.1 (1997) (defining a "norm" as a "common pattern of commercial behavior, rather than a 'moral norm' that purports to distinguish between good and bad behavior");
5. Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 Mich. L. Rev. 338, 340 (1997) (defining norms as "informal social regularities that individuals feel obligated to follow because of an internalized sense of duty, because of a fear of external non-legal sanctions, or both");
6. Eric A. Posner, Law, Economics, and Inefficient Norms, 144 U. Pa. L. Rev. 1697, 1699 (1996) (defining a "norm" as a nonlegal rule developed and enforced by a community rather than the state);
7. Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. Chi. L. Rev. 711, 740 (1986) (referring to "custom" in the Blackstonian sense of continuous uses of land by the public since time immemorial).
8. Despite their differences, all of these forms of custom share the common characteristic of being rules developed outside the legal system by communities or industries that have extra-judicial enforcement mechanisms. I therefore use the term "custom" broadly to include industry practices, community-developed standards of behaviors (sometimes referred to as norms), common community practices, and practices dating from time immemorial. A more detailed examination of the distinctions between the categories of custom is outside the scope of this Article. See generally Jack P. Gibbs, Norms: The Problem of Definition and Classification, 70 Am. J. Soc. 586 (1965) (discussing the difficulties of defining the term "norm").
9. See, e.g., Bernstein, supra note 1; Richard A. Epstein, Confusion About Custom: Disentangling Informal Customs from Standard Contractual Provisions, 66 U. Chi. L. Rev. 821 (1999) [hereinafter Epstein, Confusion].
10. See, e.g., William M. Landes & Richard A. Posner, The Economic Structure of Tort Law 132-33 (1987);
11. Epstein, The T.J. Hooper, supra note 1; Clarence Morris, Custom and Negligence, 42 Colum. L. Rev. 1147 (1942).
12. See, e.g., Thornton v. Hay, 462 P.2d 671, 676-78 (Or. 1969);
13. see also 1 William Blackstone, Commentaries *76; Rose, supra note 1, at 713-14.
14. Clarisa Long, Information Costs in Patent and Copyright, 90 Va. L. Rev. 465, 484 (2004).
15. Stephen L. Carter, Custom, Adjudication, and Petrushevsky's Watch: Some Notes from the Intellectual Property Front, 78 Va. L. Rev. 129, 131 (1992).
16. 126 F.3d 70, 73 (2d Cir. 1997).
17. Id. at 72-73.
18. Id. at 81
19. (quoting Harper & Row v. Nation Enters., 471 U.S. 539, 562 (1985)) (relying on failure to pay the "customary price" as a basis for rejecting a fair use defense to copyright infringement). The court cited an amicus brief filed by the Artists Rights Society and the Picasso estate that listed numerous examples of other shows and films that licensed artwork in similar circumstances.
20. Id. at 81 n.15;
21. see also Brief for the Artists Rights Society and the Picasso Administration as Amicus Curiae Supporting Respondents at 4-5
22. id.
23. The district court in Ringgold had held the use fair when it did not consider the film and television industry's practice of licensing set dressing. Ringgold v. Black Entm't Television, 40 U.S.P.Q. 2d 1299, 1302 (S.D.N.Y. 1996);
24. see also Amsinck v. Columbia Pictures Indus., 862 F. Supp. 1044, 1046, 1050 (S.D.N.Y. 1994) (holding unlicensed use of plaintiff's mobile in a film was a fair use even though it was sometimes shown in close-up and appeared on screen for over one and one-half minutes);
25. cf. Sandoval v. New Line Cinema Corp., 147 F.3d 215, 216, 218 (2d Cir. 1998) (holding use of plaintiff's photographs in the motion picture Seven noninfringing and de minimis because the photographs were visible for less than thirty-six seconds and were not the focal point of the relevant shots).
26. D.T. Max, Final Destination: Why Do the Archives of So Many Great Writers End Up in Texas?, New Yorker, June 11 & 18, 2007, at 54, 66.
27. Id. at 66.
28. Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions, H.R. Rep. No. 94-1476, at 68-70 (1976)
29. as reprinted in 1976 U.S.C.CA.N. 5659, 5681-83.
30. See discussion infra Subsection I.A.2.b.
31. See H.R. Rep. No. 94-1476, at 67-74
32. as reprinted in 1976 U.S.C.CA.N. at 5680-88;
33. see also discussion infra Subsection I.A.2.b.
34. See discussion infra Subsection I.A.2.b.
35. H.R. Rep. No. 94-1476, at 68-70
36. as reprinted in 1976 U.S.C.CA.N. at 5680-88;
37. see also discussion Subsection I.A.2.b.
38. Compare 17 U.S.C. § 107 (2000), with H.R. Rep. No. 94-1476, at 68-70
39. as reprinted in 1976 U.S.C.CA.N. at 5681-83.
40. See also discussion infra Subsection I.A.2.b.
41. Ass'n of Indep. Video & Filmmakers et al., Documentary Filmmakers' Statement of Best Practices in Fair Use 1 (2005), available at http://www.centerforsocialmedia.org/rock/backgrounddocs/bestpractices.pdf [hereinafter Filmmakers' Statement] (emphasis added).
42. A number of different origins have been attached to the term "copyleft," but I use the term broadly to refer to the movement to limit the scope of copyright and provide greater public access to copyrighted works.
43. Both the Creative and Science Commons movements and the free and opensource software movements have developed licenses for copyrighted works and patents that can be used to provide greater access to those works than the default law allows. See Creative Commons Homepage, http://creativecommons.org (last visited Sept. 20, 2007);
44. Science Commons Homepage, http://sciencecommons.org (last visited Sept. 20, 2007);
45. GNU Project Homepage, http://www.gnu.org (last visited Sept. 20, 2007);
46. OSS Homepage, http://opensource.org (last visited Sept. 27, 2007);
47. see also discussion infra Subsection I.B.3.
48. In discussions of custom, scholars have often used the term "optimal" when evaluating whether particular customs should be preferred over judge-made or statutory laws. "Optimal" suggests that a rule is the best possible one. In the real world, one may never be able to achieve the best, nor, given differing opinions of what the evaluative metric should be for determining the best outcome, even agree on what the best outcome ought to be. I nevertheless continue to use the term, both because it is common to the literature with which I engage and also because the alternatives carry with them their own baggage. My intention is for readers to interpret an "optimal" rule as the best possible one given certain real world constraints. See also infra note 176.
49. The current average cost of copyright litigation through the trial level ranges from $290,000 to $1 million. American Intellectual Property Law Association, Report of the Economic Survey 2007, at 25 (2007). Patent cases run substantially higher, averaging from $600,000 to more than $5 million depending on the sum at risk. Id. Trademark infringement litigation costs average from $255,000 to more than $1 million. Id.
50. See, e.g., 15 U.S.C § 1117(b) (2000) (authorizing treble damages for intentional use of counterfeit marks);
51. U.S.C. § 504(c)(2) (2000) (authorizing statutory damages up to $150,000 for willful copyright infringements);
52. Cal. Civ. Code § 3344 (West 1997) (authorizing punitive damages for knowingly using "another's name, voice, signature, photograph, or likeness" without consent under California's right of publicity statute);
53. N.Y. Civ. Rights Law § 51 (McKinney 1992) (authorizing exemplary damages under New York's privacy statute for knowing use of another's "name, portrait or picture" without consent);
54. see also discussion infra Section II.B. Generally, only injunctive relief is awarded in trademark infringement cases, but when a showing of willfulness is made, courts can award monetary damages for lost profits, costs, and fees.
55. See 15 U.S.C. §§ 1114(1), 1117(a).
56. See, e.g., 15 U.S.C. § 1117;
57. U.S.C. § 505;
58. U.S.C. § 285 (2000).
59. See 17 U.S.C. § 506;
60. cf. 18 U.S.C. § 2320 (2000) (authorizing criminal liability for trafficking in counterfeit goods or services).
61. See 17 U.S.C. §107;
62. see also Folsom v. Marsh, 9 F. Cas. 342, 344-45 (D. Mass. 1841) (No. 4901). Section 107 provides that: [T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107.
63. Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir. 1939) (describing "the issue of fair use" as "the most troublesome in the whole law of copyright");
64. Pierre N. Levai, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1105 (1990) (expressing concern that because of the fair use doctrine's lack of clarity, judges may evaluate fair use on the basis of "ad hoc perceptions of justice");
65. Lloyd L. Weinreb, Fair's Fair: A Comment on the Fair Use Doctrine, 103 Harv. L. Rev. 1137, 1138-40 (1990) (terming fair use a "thicket" and the statutory provision "muddled" and "inconsistent").
66. I use the term "IP works" broadly to include any potentially copyrightable, trademarkable, or patentable properties, as well as publicity rights. Though I group trademarks and the right of publicity into this discussion, I do not endorse the treatment of either as property. See, e.g., Jennifer E. Rothman, Copyright Preemption and the Right of Publicity, 36 U.C. Davis L. Rev. 199, 206 (2002) [hereinafter Rothman, Copyright Preemption];
67. Jennifer E. Rothman, Initial Interest Confusion: Standing at the Crossroads of Trademark Law, 27 Cardozo L. Rev. 105, 146-49 (2005) [hereinafter Rothman, Initial Interest Confusion].
68. Patricia Aufderheide & Peter Jaszi, Ctr. for Soc. Media, Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers 22 (2004), http://www.centerforsocialmedia.org/files/pdf/ UNTOLDSTORIES_Report.pdf. Aufderheide and Jaszi define the clearance culture as "the shared set of expectations that all rights must always be cleared." Id. at 22. Others have also used this term.
69. See, e.g., Marjorie Heins & Tricia Beckles, Brennan Ctr. for Justice, Will Fair Use Survive? Free Expression in the Age of Copyright Control 5 (2005), available at http://www.fepproject.org/policyreports/WillFairUseSurvive. pdf;
70. cf. Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (2004) [hereinafter Lessig, Free Culture] (contrasting current "lock down culture" with his preferred "free culture").
71. See, e.g., New Era Publ'ns Int'l v. Carol Publ'g Group, 904 F.2d 152, 157 (2d Cir. 1990);
72. Rosemont Enters, v. Random House, Inc., 366 F.2d 303, 307 (2d Cir. 1966);
73. Seale v. Gramercy Pictures, 949 F. Supp. 331, 337-38 (E.D. Pa. 1996).
74. See, e.g., D.T. Max, The Injustice Collector: Is James Joyce's Grandson Suppressing Scholarship?, New Yorker, June 19, 2006, at 34, 38.
75. For example, James Joyce's grandson, Stephen Joyce, has intimidated numerous Joyce scholars and biographers into abandoning or severely cutting material out of projects about Joyce. Max, supra note 32, at 34, 38;
76. see also Max, supra note 11, at 66 (describing publishing companies' restrictive IP policies).
77. See, e.g., Testimony of Arthur Frankel, Roy Exp. Co. Establishment of Vaduz v. CBS, Inc., 503 F. Supp. 1137 (S.D.N.Y. 1980) (No. 78-Civ. 2417)
78. reprinted in Excerpts of Record at 419, 672 F.2d 1095 (2d Cir. 1981) (Nos. 81-7027, 81-7109) (testimony of former senior vice president of Paramount Television);
79. Michael C Donaldson, Clearance and Copyright: Everything the Independent Filmmaker Needs to Know 64, 214-15 (2d ed. 2003);
80. Lloyd J. Jassin & Steven C Schechter, The Copyright Permission and Libel Handbook: A Step-by-Step Guide for Writers, Editors, and Publishers 7, 43 (1998) (recommending clearing all potentially copyrighted works without regard to possible fair use defenses and also recommending clearing public domain works);
81. Aufderheide & Jaszi, supra note 30, at 5;
82. Heins & Beckles, supra note 30, at 5;
83. Ronald H. Gertz et al., Clearance of Rights for Motion Picture and Television Productions, Century City Bar Ass'n J., Summer 1983, at 42, 43, 47-50 (recommending clearance of all "identifiable names, products, locations, companies[,] fictional characters[,]" film clips, and music used); Suzy Vaughan Assocs., Producers Guidelines, http://www.suzyvaughan.com/ producers_guidelines.htm (last visited Sept. 21, 2007) (recommending licensing of any copyrighted work no matter how little is used or context and recommending clearing of some publicity rights, such as for individuals who appear on news programs);
84. What Is Clearance, http://www.creativeclearance.com/whatisclearance.html (last visited Sept. 21, 2007) (recommending "clearance" of any work created by another person(s)); discussion infra Part II and infra note 37.
85. Most contracts today include such provisions, but even those from the relatively recent past often do not. See, e.g., Wendt v. Host Int'l, 125 F.3d 806, 811 (9th Cir. 1997) (holding that there could be a right of publicity violation when derivative work based on characters from television show was prepared without permission of actors from original series).
86. have contended elsewhere that even if a contract does not grant such rights, copyright law should preempt publicity rights in such instances. See Rothman, Copyright Preemption, supra note 29, at 208-14, 259-62. I note that the Screen Actors Guild and the relevant collective bargaining agreements also influence clearance practices with regard to publicity holders' rights, as well as concerns over actions for invasion of privacy, false light, and defamation.
87. Email from Gregg Nations, Script Coordinator, Lost, ABC/Touchstone, to Jennifer Rothman, Assoc. Professor of Law, Loyola Law School, L.A. (Aug. 27, 2007, 2:16:00 PDT) (on file with author);
88. see also Donaldson, supra note 34, at 63, 214-15, 237-38 (suggesting removal of all references in films to real people, whether living or dead, even if references were unintentional).
89. See, e.g., Matthews v. Wozencraft, 15 F.3d 432, 439-40 (5th Cir. 1994) ("Courts long ago recognized that a celebrity's right of publicity does not preclude others from incorporating a person's name, features or biography in a literary work, motion picture, news or entertainment story. Only the use of an individual's identity in advertising infringes on the persona."
90. (quoting George M. Armstrong, Jr., The Reification of Celebrity: Persona as Property, 51 La. L. Rev. 443, 467 (1991)));
91. Seale v. Gramercy Pictures, 949 F. Supp. 331, 336 (E.D. Pa. 1996) (holding that "use of a person's name and likeness in news, entertainment, and creative works does not infringe on the right of publicity");
92. see also Restatement (Third) of Unfair Competition § 47 (1995);
93. J. Thomas McCarthy, The Rights of Publicity and Privacy, §§ 8:90-:99, 8:302-:321 (2006);
94. Rothman, Copyright Preemption, supra note 29, at 206-07 & n.20;
95. Eugene Volokh, Freedom of Speech and the Right of Publicity, 40 Hous. L. Rev. 903, 908 (2003).
96. See, e.g., Landham v. Lewis Galoob Toys, 227 F.3d 619, 623-24 (6th Cir. 2000) (applying right of publicity to an action figure from a movie);
97. Elvis Presley Enters, v. Capece, 141 F.3d 188, 193 (5th Cir. 1998) (applying right of publicity to nightclub name);
98. Estate of Presley v. Russen, 513 F. Supp. 1339, 1358-59 (D.N.J. 1981) (allowing right of publicity action against Elvis impersonators);
99. Apple Corps Ltd. v. Leber, 229 U.S.P.Q. 1015,1016 (Cal. Super. Ct. 1986) (applying right of publicity to musical show about the Beatles);
100. Doe v. TCI Cablevision, 110 S.W.3d 363, 370-72 (Mo. 2003) (applying right of publicity to a comic book);
101. see also Rothman, Copyright Preemption, supra note 29, at 206-07 & n.19.
102. Email from Kirk Marcolina, Director & Producer, Camp Out, to Jennifer Rothman, Assoc. Professor of Law, Loyola Law School, L.A. (June 20, 2007, 12:35:20 PDT) (on file with author).
103. Id.
104. Clips from films can cost, depending on the value of the underlying work, up to $10,000 a minute. Aufderheide & Jaszi, supra note 30, at 19. Some networks charge upwards of $90 per second for news footage.
105. Id at 8. To clear the song Happy Birthday costs $15,000-20,000 per verse.
106. Id. at 11;
107. see also Richard Feiner & Co. v. H.R. Indus., 10 F. Supp. 2d 310, 314 n.13 (S.D.N.Y. 1998) (noting that licensing fees for photographs are $5,000 to $6,500 per photograph).
108. Heins & Beckles, supra note 30, at 5-6.
109. Films regularly are covered by errors and omissions insurance, which, among other things, compensates a producer or distributor for litigation costs and damages related to claims for infringement of others' IP. This type of insurance is commonly referred to as "E & O." E & O insurers usually demand clearances for all potentially protected IP works even where there is no possible cause of action. For example, one leading E & O broker, Dennis Reiff, explains that he would require clearance from Disney before showing the Disney Concert Hall in the background of a commercial set in Los Angeles. Id. at 5-6.
110. This conclusion is especially troubling since Disney does not own the venue but simply donated money toward its construction. More importantly, regardless of whether Disney had an ownership interest, permission for displaying the building is not required by copyright or trademark law. See 17 U.S.C. §§ 106(5), 113(c) (2000);
111. Rock & Roll Hall of Fame & Museum v. Gentile Prods., 134 F.3d 749, 755-56 (6th Cir. 1998) (holding photographer's use of picture of Rock and Roll Hall of Fame and use of that name in conjunction with the photograph did not constitute trademark infringement). Nevertheless, cautious E & O brokers and attorneys clear such uses because Disney is known to be very litigious and has the money to make litigation very expensive. Heins & Beckles, supra note 30, at 6;
112. see also Donaldson, supra note 34, at 214 (recommending clearing all distinctive locations and buildings);
113. Gertz et al., supra note 34, at 43.
114. Joseph Farrell & Robert P. Merges, Incentives to Challenge and Defend Patents: Why Litigation Won't Reliably Fix Patent Office Errors and Why Administrative Patent Review Might Help, 19 Berkeley Tech. LJ., 943, 955-60 (2004);
115. Mark Lemley & Carl Shapiro, Patent Holdup and Royalty Stacking, 85 Tex. L. Rev. 1991, 1992-93 (2007).
116. See, e.g., Robert S. Bray, Photocopying and Copyright: A Progress Report, 48 Special Libr. 100, 101-03 (1957) (urging adoption of policy regarding library photocopying to avoid "unfavorable incident" in which publishers sue).
117. See Robert C. Binkley, Manual on Methods of Reproducing Research Materials, at iii, 1-2 (1936);
118. Jackson S. Saunders, Origin of the "Gentleman's Agreement" of 1935, in Reprography and Copyright Law app. B, at 159 (Lowell H. Hattery & George P. Bush eds., 1964).
119. Peter B. Hirtle, Research, Libraries, and Fair Use: The Gentleman's Agreement of 1935, 53 J. Copyright Soc'y 545, 564-69 (2006).
120. Letter from Robert C. Binkley, Chairman, Joint Comm. on Materials for Research, to W.W. Norton, President, Nat'l Ass'n of Book Publishers (May 25, 1935)
121. reprinted in 2 J. Documentary Reprod. 29, 29-30 (1939);
122. Saunders, supra note 46, at 165-66.
123. The Gentleman's Agreement, reprinted in 2 J. Documentary Reprod., 29, 31-33 (1939).
124. Letter from Robert C. Binkley, supra note 48, at 29-30;
125. Saunders, supra note 46, at 171.
126. Hirtle, supra note 47, at 549, 567
127. (quoting a letter from Thomas P. Martin, Assistant Chief of Manuscript Division, Library of Congress).
128. Some scholars continue to contend that there should be no copyright infringement on the basis of personal uses of copyrighted works. See, e.g., Jessica Litman, Lawful Personal Use, 85 Tex. L. Rev. 1871, 1918 (2007).
129. Hirtle, supra note 47, at 549;
130. see also discussion infra Section II.B.
131. A.L.A. News, 35 A.L.A. Bull. 84, 84-85 (1941) (discussing contents of Reproduction of Materials Code);
132. see also Abe A. Goldman, The Concept of the Law of Copyright, in Reprography and Copyright Law, supra note 46, at 15.
133. Borge Varmer, Study No. 15: Photoduplication of Copyrighted Material by Libraries 52 (1959)
134. reprinted in Subcomm. on Patents, Trademarks & Copyrights, S. Comm. on the Judiciary, 86th Cong., Copyright Law Revision 45, 52 (Comm. Print 1960) (quoting Reproduction of Materials Code) (emphasis added).
135. A.L.A. News, supra note 53, at 84.
136. Id.
137. This section ultimately became 17 U.S.C. § 107 (2000).
138. The Author-Publisher Group, the Author's League of America, the Association of American Publishers, Inc., and the Chairman of the Copyright Committee signed the resulting agreement on Classroom Guidelines with respect to books and periodicals. 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)
139. as reprinted in 1976 U.S.CCA.N. 5659, 5681-83.
140. H.R. Rep. No. 94-1476, at 67
141. as reprinted in 1976 U.S.CCA.N. at 5680.
142. H.R. Rep. No. 90-83, at 33, 36 (1967);
143. see also H.R. Rep. No. 94-1476, at 67-68
144. as reprinted in WIt, U.S.CCA.N. at 5680.
145. H.R. Rep. No. 94-1476, at 72
146. as reprinted in 1976 U.S.CCA.N. at 5685.
147. Although the letter to the Judiciary Committee transmitting the Classroom Guidelines suggests that some educators were involved in the umbrella ad hoc committee of educational institutions, no specific educator or university organization was a signatory to the agreement. See id. at 70;
148. see also Basic Books v. Kinko's Graphics Corp., 758 F. Supp. 1522, 1535 n.10 (S.D.N.Y. 1991) (referencing testimony of Professor Peter Jaszi that the Guidelines were forced on, rather than developed by, educators).
149. H.R. Rep. 94-1476, at 68
150. as reprinted in 1976 U.S.C.CA.N. at 5682.
151. Id.
152. Id.
153. Even though Congress included the Guidelines in the legislative history, there was never a floor debate over the Guidelines, no vote on their provisions, and no opportunity for public comment.
154. See, e.g., Nat'l Comm'n on New Technological Uses of Copyrighted Works, Final Report of the National Commission on New Technological Uses of Copyrighted Works 52 (1979), available at http://digital-law-online.info/CONTU/PDF/ Chapter4.pdf [hereinafter CONTU Guidelines] (treating the Classroom Guidelines as part of the 1976 Copyright Act). Individual members of the Judiciary Committee and, in particular, its Chairman, Representative Kastenmeier, may have hoped that educators and universities would adhere to the Classroom Guidelines, but there is no evidence either that this was a generally held position by Congress, nor even that Kastenmeier thought that uses exceeding those allowable by the Classroom Guidelines should be per se infringing.
155. See, e.g., Robert C. Ellickson, Order Without Law: How Neighbors Settle Disputes 259 & n.73 (1991) (describing the Stanford University practice in the 1980s);
156. Univ. of Cal., University of California Policy on the Reproduction of Copyrighted Material for Teaching and Research (1986), http://www.ucop.edu/ ucophome/coordrev/policy/4-29-86.html [hereinafter UC Policy]. Many universities will only defend professors against copyright infringement actions if they conform to the Guidelines or if they acted with the express approval of university counsel.
157. See, e.g., N.Y. Univ., University Policy on Photocopying Copyrighted Materials 2 (1983), http://www.nyu.edu/students.guide/policies/photocopying.pdf [hereinafter NYU Policy];
158. Univ. of Va., The University's Policy on Copying of Copyrighted Material (1987), http://www.lib.virginia.edu/reserve/copyright/infringe.html [hereinafter Virginia Policy]. Some universities go even further than the Guidelines and require that all material circulated in the classroom be accompanied by a notice of copyright or be purchased.
159. See, e.g., Virginia Policy, supra.
160. William W. Fisher & William McGeveran, Berkman Ctr. for Internet & Soc'y, The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age 57 (2006), http://cyber.law.harvard.edu/ home/2006-09. Admittedly, formal compliance with the Guidelines by universities likely exceeds actual compliance by individual university instructors.
161. Addison-Wesley Publ'g Co. v. N.Y. Univ., No. 82-Civ-8333, 1983 WL 1134, at *1 (S.D.N. Y., May 31, 1983).
162. H.R. Rep. 94-1476, at 70-74 (1976)
163. as reprinted in 1976 U.S.C.CA.N. 5659, 5684-88 (Guidelines for Educational Uses of Music).
164. CONTU Guidelines, supra note 66, at 55.
165. 17 U.S.C. § 108(g)(2) (2000).
166. CONTU Guidelines, supra note 66, at 55.
167. Bruce A. Lehman, Assistant Sec'y of Commerce & Comm'r of Patents & Trademarks, The Conference on Fair Use: Final Report to the Commissioner on the Conclusion of the Conference on Fair Use 7 (1998), available at http://www.uspto.gov/web/offices/dcom/olia/confu/confurep.pdf.
168. Id. at 18.
169. Heins & Beckles, supra note 30, at 6.
170. See, e.g., Testimony of Robert Eaton, Roy Exp. Co. Establishment of Vaduz v. CBS, Inc., 503 F. Supp. 1137 (S.D.N.Y. 1980) (No. 78-Civ. 2417)
171. reprinted in Excerpts of Record at 696-97, 672 F.2d 1095 (2d. Cir. 1981) (Nos. 81-7027, 81-7109);
172. see also George Dessart, Museum of Broad. Commc'ns, Standards and Practices http://www.museum.tv/archives/etv/S/htmlS/standardsand/standardsand. htm (last visited Aug. 24, 2007);
173. Email from Gregg Nations, supra note 37.
174. See discussion supra Subsection I.A.1;
175. see also Heins & Beckles, supra note 30, at 20-21.
176. See, e.g., Williams & Wilkins Co. v. United States, 487 F.2d 1345, 1373-74 (Ct. Cl. 1973);
177. see also American Association of Law Libraries, Model Law Firm Copyright Policy (2007), http://www.aallnet.org/about/model_law.asp.
178. See discussion infra Section II.B.
179. The term "best practices" is imported from the corporate world where it is used as a way for businesses to improve their performance by comparing their practices to what other companies are doing that has worked well. David Zaring, Best Practices, 81 N.Y.U. L. Rev. 294, 308 (2006). It has a very different meaning, as I explain, in the IP context.
180. See Pat Aufderheide, How Documentary Filmmakers Overcame Their Fear of Quoting and Learned to Employ Fair Use: A Tale of Scholarship in Action, 1 Int'l J. Comm. 26, 33-35 (heralding the success of the Filmmakers' Statement and calling for the adoption of similar best practices statements in other fields);
181. Aufderheide & Jaszi, supra note 30, at 30-31;
182. Fisher & McGeveran, supra note 68, at 91, 103-05;
183. see also Kristin Thompson, Report of the Ad Hoc Committee of the Society for Cinema Studies, "Fair Usage Publication of Film Stills," 32 Cinema J. 3, 4, 12-14 (1993);
184. Electronic Reserves and Fair Use, Ass'n Res. Libr. Bimonthly Report, Feb. 2004, at 1-3, available at http://www.arl.org/bm~doc/ereserves.pdf.
185. See, e.g., Filmmakers' Statement, supra note 19, at 1.
186. Id. (emphasis added). The Filmmakers' Statement was produced by the Association of Independent Video and Filmmakers, Independent Feature Project, International Documentary Association, National Alliance for Media Arts and Culture and the D.C Chapter of Women in Film, in consultation with the Center for Social Media and the IP program at American University. The Statement was also endorsed by Arts Engine, the Bay Area Video Coalition, the Independent Television Service, P.O.V./American Documentary, and the University Film and Video Association.
187. Id.
188. Id. (emphasis added).
189. Electronic Reserves and Fair Use, supra note 82, at 1-3.
190. Id.
191. See, e.g., Kal Raustiala & Christopher Sprigman, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, 92 Va. L. Rev. 1687 (2006) (discussing the continued productivity and creativity in the fashion industry despite the absence of IP protections).
192. Emmanuelle Fauchart & Eric Von Hippel, Norms-Based Intellectual Property Systems: The Case of French Chefs, Org. Sci. (forthcoming 2008) (manuscript at 2, available at http://papers.ssrn.com/sol3/papers.cfm7abstract_ id=881781).
193. Id. at 3-1,17.
194. Id. at 18.
195. See generally Rebecca Tushnet, Payment in Credit: Copyright Law and Subcultural Creativity, 70 Law & Contemp. Probs. 135 (2007) (discussing the emerging community of online artists who create derivative pieces using established works and their subsequent attempts to legitimize and protect these unauthorized works);
196. Mark A. Lemley, The Law and Economics of Internet Norms, 73 Chi.-Kent L. Rev. 1257 (1998) (considering skeptically the value of allowing private norms rather than public law to order the Internet).
197. See Terry L. Anderson & Peter J. Hill, The Not So Wild, Wild West 108-09 (2004).
198. Tushnet, supra note 92, at 155-56.
199. Fan fiction creates storylines based on existing, generally popular works. Examples include Star Trek derivatives fantasizing about Kirk and Spock having a homosexual relationship and Harry Potter variations in which Hermione Granger plays the lead character. See Anupam Chander & Madhavi Sunder, Everyone's A Superhero: A Cultural Theory of "Mary Sue" Fan Fiction as Fair Use, 95 Cal. L. Rev. 597 (2007).
200. Tushnet, supra note 92, at 142-43, 155-56.
201. Id. at 155.
202. See, e.g., Harvard Univ., Statement of Policy in Regard to Inventions, Patents, and Copyrights (1998), http://www.fas.harvard.edu/~research/greybook/ patents.html [hereinafter Harvard Invention Policy];
203. N.Y. Univ., Statement of Policy on Copyrights (1972), http://www.nyu.edu/oaa/pohcies.html;
204. Univ. of Cal., University of California Policy on Copyright Ownership (1992), http://www.ucop.edu/ucophome/coordrev/policy/8-19-92att.html [hereinafter UC Ownership Policy];
205. Univ. of Va., Policy: Copyright Policy (2004), https://etg07.itc. virginia.edu/policy/policydisplay?id='RES-001'.
206. The work-for-hire doctrine vests ownership of works of authorship in an employer rather than an employee when the work is produced in the scope of employment and at the direction of the employer. See 17 U.S.C. §§ 101, 201 (2000);
207. Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 750-51 (1989). There is little dispute that university faculty members who produce scholarly books and articles are fulfilling expected job tasks, but one could argue that the works are not prepared "at the direction" of the employer and therefore do not fall within the work-for-hire doctrine.
208. N.Y. Univ., Statement of Policy on Computer Software Copyrights (1989), http://www.nyu.edu/oaa/policies.html [hereinafter NYU Software Copyright Policy] (emphasis added);
209. see also UC Ownership Policy, supra note 97 (stating that the policy
210. Univ. of Chi., New Information Technologies and Intellectual Property at the University (1999), http://www.uchicago.edu/docs/policies/provostoffice/ intprop.html ("By long-established practice, individual faculty members enjoy the royalties on any book that they write___" (emphasis added));
211. Yale Univ., Yale University Copyright Policy (2001), http://www.yale.edu/ ocr/pfg/policies/copyright.html ("It is traditional at Yale and other universities ... for books, articles and other scholarly writings by a faculty member to be deemed the property of the writer...." (emphasis added)).
212. See, e.g., NYU Software Copyright Policy, supra note 99.
213. Id. (emphasis added).
214. 35 U.S.C. §§ 101, 115, 116 (2000);
215. see, e.g., N.Y. Univ., Statement of Policy on Patents (1983), http://www.nyu.edu/oaa/policies.html#patents;
216. Univ. of Cal., University of California Patent Policy (1997), http://www.ucop.edu/ott/genresources/policy_pdf/PatentPolicy1997.PDF;
217. Univ. of Chi., Statute 18: Patent Policy, 44-45 (2007), http://trustees.uchicago.edu/articles/statutes.pdf.
218. But see Harvard Invention Policy, supra note 97 (permitting faculty to retain patent ownership over nonmedical inventions). The treatment of patentable inventions has changed somewhat over time and university ownership of inventions funded by the federal government is now established under the Patent Act. Bayh-Dole University and Small Business Patent Procedures Act of 1980, Pub. L. No. 96-517, 94 Stat. 3015 (codified as amended at 35 U.S.C. §§ 200-201).
219. See GNU Project Homepage, http://www.gnu.org (last visited Aug. 20, 2007).
220. GNU is short for a UNIX-compatible software system that is "not UNIX." Id.
221. GNU General Public License, ver. 3 (June 29, 2007), http://www.gnu.org/ licenses/gpl.txt.
222. The Free Software Foundation's motto begins, "'[f]ree software[]' is a matter of liberty, not price. [Y]ou should think of 'free' as in 'free speech'...." GNU Project Homepage, supra note 103.
223. See, e.g., History of the Open Source Initiative, http://opensource.org/ history (last visited Aug. 29, 2007);
224. Open Source Case for Business: Advocacy, http://opensource.org/advocacy/ case_for_business.php (last visited Aug. 29, 2007) (describing open-source mission as using market forces to encourage development of OSS);
225. Bruce Perens, The Open Source Definition, in Open Sources: Voices from the Open Source Revolution 171,172-173, 186-88 (Chris DiBona et al. eds., 1999) (tracing the community-based history of the OSS and free software movements and its community-based future);
226. Richard Stallman, The GNU Operating System and the Free Software Movement, in Open Sources: Voices from the Open Source Revolution, supra, at 53, 55, 66-70 (describing free software movement as "a stark moral choice" and the importance of establishing community norms "buil[ding] up a strong feeling that free software is a matter of principle, and non-free drivers are intolerable").
227. See Creative Commons, http://creativecommons.org (last visited Sept. 22, 2007). There have been a number of smaller scale efforts to provide alternative visions of copyright law. The American Library Association as early as the 1970s started distributing journals with notices that the journals could "be photocopied for the non-commercial purpose of scientific or educational advancement" without permission. CONTU Guidelines, supra note 66, at 51.
228. Creative Commons, supra note 108. Creative Commons enables individuals to dedicate their work to the public domain by offering "no rights reserved" licenses. Creative Commons Frequently Asked Questions, http://wiki.creativecommons.org/faq (last visited Aug. 20, 2007).
229. Brief for Creative Commons as Amicus Curiae Supporting Respondents at 1, Metro-Goldwin Mayer Studios v. Grokster, Ltd., 545 U.S. 913 (2005) (No. 04-480).
230. Id. at 2;
231. Pearl Jam Releases Its First Music Video in Eight Years Under a Creative Commons License, Creative Commons Press Release (May 19, 2006), http://creativecommons.org/press-releases/entry/5912.
232. Lawrence Lessig, The Creative Commons, 65 Mont. L. Rev. 1, 11 (2004);
233. Creative Commons Frequently Asked Questions, supra note 109.
234. Lessig, Free Culture, supra note 30 (emphasis added);
235. see also James Boyle, Shamans, Software, and Spleens, at x (1996);
236. Lessig, supra note 112, at 12-13.
237. See Science Commons: Biological Materials Transfer Project, http://sciencecommons.org/projects/licensing/ (last visited Aug. 20, 2007).
238. 17 U.S.C. § 107 (2000).
239. This factor, as interpreted by the courts, also requires a consideration of whether the use is transformative. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578-79 (1994).
240. See, e.g., Davis v. Gap, Inc., 246 F.3d 152, 166-68, 176 (2d Cir. 2001);
241. L.A. News Serv. v. Reuters Television Int'l, 149 F.3d 987, 994-95 (9th Cir. 1998);
242. L.A. News Serv. v. KCAL-TV Channel 9, 108 F.3d 1119, 1122-23 (9th Cir. 1997);
243. Ringgold v. Black Entm't Television, 126 F.3d 70, 80-81 (2d Cir. 1997);
244. Princeton Univ. Press v. Mich. Document Servs., 99 F.3d 1381, 1385-86 (6th Cir. 1996);
245. Am. Geophysical Union v. Texaco Inc., 60 F.3d 913, 926-27 (2d Cir. 1994);
246. Rogers v. Koons, 960 F.2d 301, 311-12 (2d Cir. 1992);
247. Amsinck v. Columbia Pictures Indus., 862 F. Supp. 1044, 1048-49 (S.D.N.Y. 1994);
248. Frank Schaffer Publ'ns v. The Lyons P'ship, 10 Ent. L. Rep. 9 (C.D. Cal. 1993);
249. Basic Books v. Kinko's Graphics Corp., 758 F. Supp. 1522, 1532 (S.D.N.Y. 1991).
250. 471 U.S. 539(1985).
251. Id. at 562.
252. See, e.g., Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 801-02, 804 & n.19 (6th Cir. 2005) (questioning the availability of a fair use defense for the unlicensed sampling of another's song in an industry where most companies and artists "sought licenses as a matter of course");
253. Davis, 246 F.3d at 176 (rejecting fair use defense for incidental display of sunglasses in advertisement when defendant had failed to pay the customary price for use of a copyrighted design);
254. Ringgold, 126 F.3d at 81 (rejecting fair use defense where defendant did not follow industry custom of clearing background scenery used in television show);
255. Princeton Univ. Press, 99 F.3d at 1386-88 (rejecting fair use defense when defendant did not follow industry custom of licensing coursepack materials);
256. Am. Geophysical Union, 60 F.3d at 930-31 (rejecting fair use defense when private corporation did not follow industry practice of licensing journal articles used by its researchers);
257. Twentieth Century Fox Film Corp. v. Marvel Enters., 155 F. Supp. 2d 1, 47-48 (S.D.N.Y. 2001) (rejecting fair use defense when defendants failed to license footage used in a promotional clip in contravention of the industry practice to license such clips);
258. Richard Feiner & Co. v. Passport Int'l Prods., No. 97-Civ-9144, 1998 WL 437157, at *1 (S.D.N.Y. 1998) (finding defendants' failure to license film trailers reckless because "defendants are not amateurs in video production" and it is film "industry practice to license trailers for exhibition");
259. cf. Triangle Publ'ns v. Knight-Ridder Newspapers, 626 F.2d 1171, 1176 (5th Cir. 1980) (holding that the use of plaintiff's copyrighted magazine cover was fair use, in part because the advertising industry routinely follows a practice of using copyrighted works in comparative ads);
260. Frank Schaffer Publ'ns, 10 Ent. L. Rep. at 13 (holding that use was fair where no license was sought, in part because the "customary price for the inclusion of [the plaintiff's posters in the defendant's show's set] is gratis").
261. See supra note 120.
262. 12217 U.S.C. § 107(1) (2000) (listing an "educational" use as one that is nonprofit).
263. See, e.g., Princeton Univ. Press, 99 F.3d at 1397 (Merritt, J., dissenting);
264. id. at 1400-04,1407-10 (Ryan, J., dissenting);
265. Am. Geophysical Union, 60 F.3d at 929 n.17, 931;
266. id. at 936-39 (Jacobs, J., dissenting);
267. Hofheinz v. A&E Television Networks, 146 F. Supp. 2d 442, 449 (S.D.N.Y. 2001);
268. Hofheinz v. AMC Prods., 147 F. Supp. 2d 127, 140-41 (E.D.N.Y. 2001);
269. James Gibson, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale L.J. 882, 895-98 (2007);
270. Lydia Pallas Loren, Redefining the Market Failure Approach to Fair Use in an Era of Copyright Permission Systems, 5 J. Intell. Prop. L. 1, 38-41 (1997);
271. Matthew Africa, Comment, The Misuse of Licensing Evidence in Fair Use Analysis: New Technologies, New Markets, and the Courts, 88 Cal. L. Rev. 1145, 1160-62, 1164 (2000);
272. cf. Comedy III Prods. v. Gary Saderup, Inc., 21 P.3d 797, 808 n.10 (CaI. 2001).
273. See discussion infra Section III.A.
274. Ringgold, 126F.3d at 81.
275. The court cited an amicus brief filed by the Artists Rights Society and the Picasso Administration that listed numerous examples of other shows and films that had licensed artwork in similar circumstances. Id. at 81 n.15;
276. see also Brief for the Artists Rights Society, Inc. and the Picasso Administration as Amici Curiae Supporting Respondents at 4, Ringgold, 126 F.3d 70 (No. 96-9329).
277. But see Sandoval v. New Line Cinema Corp., 147 F.3d 215, 217-18 (2d Cir. 1998) (rejecting similar claim on the basis that use of copyrighted photographs by artist was de minimis without considering the licensing market).
278. The district court in Ringgold had held the use fair when it did not consider such industry licensing practices. Ringgold v. Black Entm't Television, 40 U.S.P.Q.2d 1299 (S.D.N.Y. 1996);
279. see also Amsinck v. Columbia Pictures Indus., 862 F. Supp. 1044 (S.D.N.Y. 1994) (holding unlicensed use of plaintiff's mobile in a film fair even though it was sometimes shown in close-up and appeared on screen for over one and a half minutes);
280. cf. Sandoval, 147 F.3d at 215 (holding use of plaintiff's photographs in the motion picture Seven noninfringing and de minimis because photographs were visible for less than thirty-six seconds and were not the focal point of any shot).
281. Ringgold, 126 F.3d at 81
282. (quoting Harper & Row v. Nation Enters., 471 U.S. 539, 562 (1985)) (emphasis omitted).
283. 99 F.3d 1381, 1385-88 (6th Cir. 1996).
284. 60 F.3d 913, 930-31 (2d Cir. 1994).
285. Id. at 930.
286. I note that the existence of the right of publicity itself is in large part a result of the incorporation of custom. When courts first chose to adopt this quasi-property right, they pointed to the fact that the private sector was already licensing the use of celebrities' names and images, and that courts should help to enforce these industry practices. See, e.g., Haelan Labs. v. Topps Chewing Gum, 202 F.2d 866, 868 (2d Cir. 1953) (noting that one justification for the court's creation of a right of publicity was that celebrities, such as athletes and actors, "would feel sorely deprived if they no longer received money for authorizing advertisements, popularizing their countenances, displayed in newspapers, magazines, busses, trains and subways");
287. see also Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 Cal. L. Rev. 125, 174 (1993) (suggesting that the adoption of a right of publicity by the courts was an effort to "[give] legal form (and protection) to a preexisting commercial practice").
288. See, e.g., Comedy III Prods, v. Gary Saderup, Inc., 21 P.3d 797, 807-08 (CaI. 2001);
289. see also Restatement (Third) of Unfair Competition § 47 cmt. d (1993).
290. 433 U.S. 562 (1977).
291. Id. at 576
292. (quoting Harry Kalven, Jr., Privacy in Tort Law-Were Warren & Brandeis Wrong?, 31 Law & Contemp. Probs. 326, 331 (1966)) (emphasis added).
293. See, e.g., Doe v. TCI Cablevision, 110 S.W.3d 363, 372 (Mo. 2003) (quoting "market value" language from Zucchini in analysis rejecting First Amendment defense to use of athlete's name in comic book series);
294. Comedy III Prods., 21 P.3d at 805 (quoting "market value" and "normally pay" language in discussion of why First Amendment did not protect use of celebrity images on t-shirts);
295. ETW Corp. v. Jireh Publ'g, 332 F.3d 915, 955-56 (6th Cir. 2003) (Clay, J., dissenting) (quoting "market value" and "normally pay" language twice in his argument that the First Amendment should not have protected the unauthorized use of Tiger Woods's image).
296. See, e.g., 17 U.S.C. § 104A(d)(3) (2000);
297. Wall Data Inc. v. L.A. County Sheriff's Dep't, 447 F.3d 769, 786 (9th Cir. 2006) (affirming jury instructions that asked jury to consider past licensing fees in calculating damages);
298. Davis v. Gap, Inc., 246 F.3d 152, 164-72 (2d Cir. 2001) (allowing calculation of damages based on licensing market for similar works);
299. Victor G. Reiling Assoes, v. Fisher-Price, Inc., 406 F. Supp. 2d 175, 203 (D. Conn. 2005) (allowing industry licensing practices to form a possible basis of reasonable royalty recovery in misappropriation case);
300. Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116, 1120 (S.D.N.Y. 1970) (setting forth widely adopted factors, including licensing fees on patent, used to calculate reasonable royalty);
301. Donald S. Chisum, Chisum on Patents § 20.03(2) (2007) ("A patent owner may recover as a measure of damages the royalty rate established by prior actual licenses for acts comparable to those engaged in by the infringer without authority.").
302. See, e.g., Doe v. McFarlane, 207 S.W.3d 52, 74 (Mo. Ct. App. 2006);
303. Lemley & Shapiro, supra note 44, at 2017-25;
304. see also supra note 137.
305. See, e.g., McFarlane, 207 S.W.3d at 69-70 (allowing testimony regarding licensing by well-known athletes in order to calculate both damages and reasonable royalties in a right of publicity case);
306. see also supra note 137.
307. See discussion infra Section III.A.
308. There are two fair use defenses in trademark law: a statutory defense and a common law defense. These defenses allow descriptive uses of others' trademarks, as well as references to others' trademarks in situations where a defendant needs to reference the trademark, does not use more of the mark than is necessary, and does not suggest sponsorship or affiliation. 15 U.S.C. § 1115(b)(4) (2000);
309. New Kids on the Block v. News Am. Publ'g, 971 F.2d 302, 308 (9th Cir. 1992). I note that the Trademark Dilution Revision Act of 2006 explicitly refers to the common law doctrine of nominative fair use but does not define its scope or make clear whether it applies to infringement actions.
310. See Pub. L. No. 109-312, 120 Stat. 1730 (2006) (codified as amended in various sections of 15 U.S.C., but primarily in 15 U.S.C. § 1125(c)).
311. 672 F.2d 1095, 1100, 1105 (2d Cir. 1982);
312. F. Supp. 1137, 114647 (S.D.N.Y. 1980).
313. Id. at 1098.
314. Roy Exp., 503 F. Supp. at 1146-47 (emphasis added).
315. Id. at 1146-47 (emphasis added).
316. Roy Exp., 672 F.2d at 1105 (emphasis added).
317. Harper & Row, 471 U.S. at 562.
318. Roy Exp., 503 F. Supp. at 1146.
319. Id. at 1147. The court so concluded even though CBS had asked numerous times for permission and been denied a license to use the clips.
320. Id. at 1146.
321. 60 F.3d 913, 930-31 (2d Cir. 1994);
322. see also Williams & Wilkins Co. v. United States, 487 F.2d 1345, 1365-66 (Ct. Cl. 1973) (Cowen, J., dissenting) (contending that libraries' photocopying should have been held unfair because the libraries failed to conform to their in-house guidelines).
323. See, e.g., Richard Feiner & Co. v. Passport Int'l Prod., No. 97-Civ-9144, 1998 WL 437157, at *1 (S.D.N.Y. 1998) (finding that defendant had acted willfully and recklessly in copyright case because clips from film trailers had not been licensed, in contravention of industry custom).
324. See, e.g., Univ. of Ga. Athletic Ass'n v. Laite, 756 F.2d 1535, 1545 (11th Cir. 1985) (finding intent to infringe trademark because defendant asked for and was denied license).
325. See, e.g., Am. Geophysical Union, 60 F.3d at 930-31;
326. Roy Exp., 672 F.2d at 1105.
327. See, e.g., Roy Exp., 672 F.2d at 1105.
328. See, e.g., Moore v. Big Picture Co., 828 F.2d 270, 277 (5th Cir. 1987) (awarding no exemplary damages in right of publicity case where defendant adhered to industry practice).
329. 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 70-71 (1976)
330. as reprinted in 1976 U.S.C.C.A.N. 5659, 5684 (noting that the Classroom Guidelines are not legally binding and are "not intended to limit the types of copying permitted under the standards of fair use under judicial decision").
331. See, e.g., Princeton Univ. Press v. Mich. Document Servs., 99 F.3d 1381, 1390-91 (6th Cir. 1996) (rejecting fair use defense in part because preparation of course packets violated Classroom Guidelines);
332. Am. Geophysical Union, 60 F.3d at 919 (rejecting a fair use defense when private sector copying exceeded that permitted by Classroom Guidelines);
333. Marcus v. Rowley, 695 F.2d 1171, 1178 (9th Cir. 1983) (rejecting fair use defense in part because copying for class materials exceeded guidelines);
334. Basic Books v. Kinko's Graphics Corp., 758 F. Supp. 1522, 1537 (S.D.N.Y. 1991) (holding preparation of course packets not a fair use in part because it violated the Guidelines' prohibition on anthologies).
335. 758 F. Supp. at 1544-45.
336. A number of additional explanations for the limiting role of guidelines are possible. Courts may prefer the certainty of the Guidelines to less predictable, independent, or ad hoc determinations. Courts also may be treating the fair use inquiry as a form of a reasonable use inquiry, in which uses exceeding guidelines are viewed as unreasonable. I discuss this point in the next Section, U.C.
337. I note that despite this tendency the scope of IP ownership and use rights do not expressly turn on whether uses are reasonable. Nevertheless, for purposes of this discussion, I assume reasonableness is a legitimate consideration and simply inquire whether courts' use of custom as an indicator of reasonableness makes sense.
338. Shapiro, Bernstein & Co. v. P.F. Collier & Son Co., 26 U.S.P.Q. 40, 42 (S.D.N.Y. 1934);
339. see also Harper & Row v. Nation Enters., 471 U.S. 539, 550 (1985) (describing a fair use at common law as "predicated on the author's implied consent to 'reasonable and customary' use when he released his work for public consumption" (emphasis added));
340. Richard C. De Wolf, An Outline of Copyright Law 143 (1925).
341. See, e.g., Williams & Wilkins Co. v. United States, 487 F.2d 1345, 1353 (Ct. Cl. 1973) (suggesting that "years of accepted practice" can form a basis for establishing a fair use). The British defense of fair abridgement, which predates the American concept of fair use, also historically considered adherence to "custom and usage" as evidence of a fair abridgement. Customs and usages, however, were never conclusive of that inquiry.
342. See, e.g., Dodsley v. Kinnersley, (1761) 27 Eng. Rep. 270, 270-71 (Ch.).
343. Several scholars also have suggested that long-standing fair uses should be considered when evaluating whether a given use is fair, both because of their historical legacy and also because of a view that these customary practices reflect a normative evaluation of what is "fair" or "reasonable." See, e.g., Michael J. Madison, A PatternOriented Approach to Fair Use, 45 Wm. & Mary L. Rev. 1525, 1628-29 (2004);
344. Gideon Parchomovsky, Fair Use, Efficiency, and Corrective Justice, 3 Legal Theory 347, 371 (1997);
345. Weinreb, supra note 28, at 1152-61;
346. cf. Ann Bartow, Electrifying Copyright Norms and Making Cyberspace More Like a Book, 48 Vill. L. Rev. 13, 17 (2003) (suggesting that Congress adopt "consumer use norms" as part of copyright law to encourage compliance). As I discuss in Part IV, allowing uses based on customary practices can be as problematic as barring uses on the basis of such practices.
347. See, e.g., New Era Publ'ns Int'l v. Carol Publ'g Group, 904 F.2d 152, 157 (2d Cir. 1990);
348. Rosemont Enters. v. Random House, Inc., 366 F.2d 303, 307 (2d Cir. 1966).
349. See discussion supra Section LA and note 32.
350. This discussion raises the question of whether courts use custom to establish fixed rules or whether they instead look to custom more generally at a given moment in time, whatever that custom might be. This is a difficult question to answer given the general lack of awareness about the use of custom in IP cases, as well as the fact that when courts adopt a particular custom they often reinforce the existing practices. See discussion infra Part IV.
351. See discussion supra Subsection I.B.2.
352. See, e.g., Hays v. Sony Corp. of Am., 847 F.2d 412, 416-17 (7th Cir. 1988) (describing the "universal assumption and practice" that academic writing belongs to the faculty member and not to the university, and concluding that if forced to decide whether the 1976 Act abolished the teacher exception, the court would hold "that the exception had survived");
353. Weinstein v. Univ. of 111., 811 F.2d 1091, 1094 (7th Cir. 1987) (noting the "academic tradition" that professors own their scholarly writing);
354. cf. Shaul v. Cherry Valley-Springfield Cent. Sch. Dist., 363 F.3d 177, 185-86 (2d Cir. 2004) (suggesting that faculty exception after the 1976 revisions may be limited to circumstances in which university has written policy so indicating).
355. But see Forasté v. Brown Univ., 290 F. Supp. 2d 234, 238-39 (D.R.I. 2003) (concluding that teacher exception did not survive 1976 revision);
356. Pittsburg State Univ. v. Kan. Bd. of Regents, 122 P.3d 336, 345-47 (Kan. 2005) (same).
357. 471 U.S. at 550-51.
358. Id. at 553.
359. See, e.g., Am. Geophysical Union v. Texaco Inc., 60 F.3d 913, 916 (2d Cir. 1994) (referring to the Harper & Row dicta regarding author's implied consent and one traditional understanding of fair use);
360. Clean Flicks of Colo., LLC v. Soderbergh, 433 F. Supp. 2d 1236, 1242 (D. Colo. 2006) (invoking Harper & Row's implied consent approach to the "reasonable and customary" use analysis, but finding inapplicable when a use is in a market that is not sought out by the copyright holder).
361. The Supreme Court's recent decision in Eldred v. Ashcroft, 537 U.S. 186, 219-20 (2003), confirms this view. Eldred establishes that fair use is a built-in free speech guard that furthers First Amendment principles. Id. Accordingly, fair use cannot be based solely on authorial consent. Even if an author were likely to reject a particular use, such as the use of clips of Charlie Chaplin in an obituary (as in Roy Export) or the use of lyrics in a parody (as in Acuff-Rose), fair use should still be available as a defense to copyright infringement.
362. 155 F. Supp. 2d 1, 37-38, 42-43 (S.D.N.Y. 2001).
363. See, e.g., Dun & Bradstreet Software Servs. v. Grace Consulting, 307 F.3d 197, 214-15 (3d Cir. 2002);
364. Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 709-10 (2d Cir. 1992).
365. See, e.g., May v. Morganelli-Heumann & Assocs., 618 F.2d 1363, 1367-68 (9th Cir. 1980) (looking to industry practices in architecture field to alter default rule that employer or commissioning party owns architectural drawings in pre-1976 Copyright Act case);
366. Jim Henson Prods, v. John T. Brady & Assocs., 16 F. Supp. 2d 259, 262, 267-77, 282, 285-86 & n.6, 288-90 (S.D.N.Y. 1997) (relying on advertising industry practices and entertainment attorney conventions to determine that Henson retained copyright in puppets created for use in defendant's commercials).
367. But see Avedon v. Exstein, 141 F. Supp. 278, 279-80 (S.D.N.Y. 1956) (holding that a general rule that copyright in commissioned work rests in the patron absent a specific contrary provision in the governing contract could not be overcome by contradictory trade usage).
368. As I have noted, see supra note 22, looking at whether a legal rule is "optimal" requires an evaluation of what is the best possible outcome or rule given whatever metric of evaluation one is interested in. Law and economics scholars, for example, often evaluate whether a given rule is the most efficient or welfare-maximizing given the competing interests at stake.
369. See Robert D. Cooter, Decentralized Law for a Complex Economy: The Structural Approach to Adjudicating the New Law Merchant, 144 U. Pa. L. Rev. 1643, 1655-56, 1682-84, 1690, 1694-96 (1996) (suggesting that when industry-developed norms are likely to be efficient, courts should incorporate them into the law);
370. Epstein, Confusion, supra note 2, at 831-32 (supporting the UCCs incorporation of trade practices into contracts so long as the implied terms do not contradict or undermine explicit language in the relevant contract);
371. Epstein, The T.J. Hooper, supra note 1, at 4, 24-25 (contending in the tort context that a given industry is better situated than courts are to determine the optimal safety measures);
372. cf. Kraus, supra note 1, at 409-10 (concluding that although customs are not likely to be optimal, there are reasons to doubt that judge-made laws will be superior).
373. In the tort context, for example, a number of well-regarded jurists and scholars have rejected the use of custom as a defense in negligence cases and concluded that, without independent legal analysis, industries are likely to develop suboptimal safety precautions. See, e.g., Tex. & Pac. Ry. v. Behymer, 189 U.S. 468, 470 (1903) (Holmes, J.) (rejecting custom as a defense in negligence case);
374. The T.J. Hooper, 60 F.2d 737, 740 (2d Cir. 1932) (Hand, J.) (same);
375. Mayhew v. Sullivan Mining Co., 76 Me. 100, 112 (1884);
376. Morris, supra note 3, at 1159-60 (arguing against treating conformity with custom as a complete defense in tort cases). The vast majority of courts in tort cases have agreed and rejected conformity with custom as a defense to a negligence action.
377. See Epstein, The T.J. Hooper, supra note 1, at 8; Morris, supra note 3, at 1160 n.36.
378. Several prominent scholars have also challenged the optimality of customary practices and norms in the context of the UCC's incorporation provisions, as well as more generally. See, e.g., Bernstein, supra note 1, at 715, 736, 738-39, 751-52, 756 (noting that "there is no reason to expect [customs] to be optimal legally enforceable contract provisions or necessarily better provisions than a court could construct using any of a number of interpretive methods" and demonstrating that industries do not view their trade practices as optimal and that they will often change them if given a chance to reflect on what would be the best practices);
379. Eric A. Posner, supra note 1, at 1698 (noting that there is no reason to think that customs will develop in ways that are particularly optimal).
380. See William Fisher, Theories of Intellectual Property, in New Essays in the Legal and Political Theory of Property 168, 169-72 (Stephen R. Munzer ed., 2001). For critiques of some of these justifications
381. see Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 Harv. L. Rev. 281, 289-91 (1970) (finding labor-reward and personality-based theories for copyright to be inadequate and advocating the incentive rationale as the primary justification for copyright law);
382. Seana Valentine Shiffrin, Lockean Arguments for Private Intellectual Property, in New Essays in the Legal and Political Theory of Property, supra, at 138, 141 (arguing that the Lockean labor-reward theory should not apply to IP);
383. Raustiala & Sprigman, supra note 88, at 1717-18 (calling into question the validity of the incentive-rationale theory). Trademark law and the right of publicity have somewhat different justifications for their existence, which I will address shortly.
384. See infra 1949.
385. This is true regardless of whether one thinks an optimal allocation should be the most efficient one or the most just one. Depending on which of these metrics is used, the allocation might differ, but each requires some consideration of both owner and user interests. When efficiency and justice conflict, I would err on the side of a just rather than an efficient allocation, but, as I suggest, this distinction is not crucial for either the proposed framework in Part IV or my critique here of the incorporation of custom.
386. I note that the disagreement over the optimality of customs with regards to safety measures is not driven entirely by the use of different metrics for evaluating optimality. Both Judge Hand and Professor Epstein agree that the evaluation of optimal safety measures requires a balancing of cost and effectiveness. See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947). The difference is simply that Judge Hand concluded that courts are better situated than industries to conduct this balancing.
387. See discussion supra Subsection I.A.I.
388. Some of the decisions to remove or obscure trademarks are driven by an interest in promoting a strong market for payments for product placement in films and television rather than by fear of trademark infringement or dilution actions.
389. I use the term "another's IP" somewhat loosely because the material for which clearance is sought often does not rise to the level of protectable IP, either because it does not meet the standards of patentability, copyrightability, or trademarkability, or because any such protection has expired.
390. Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 802 (6th Cir. 2005).
391. Although it is true that more powerful players, who are most often on the owners' side of transactions, will likely favor customs that promote owners' interests, it is nevertheless also true that almost every IP owner uses others' IP.
392. Lisa Bernstein, Merchant Law in a Merchant Court: Rethinking the Code's Search for Immanent Business Norms, 144 U. Pa. L. Rev. 1765, 1796-802 (1996).
393. Id. (concluding that parties are likely to make concessions when relationships are harmonious that they would not want to make when the relationships are breached).
394. See Ellickson, supra note 67, at 255-56 (suggesting that close-knit communities, such as the cattle ranchers of Shasta County, are more likely to develop welfare-maximizing rules than outsider judges).
395. Professor Robert Ellickson's work exploring the practices of Shasta County cattle ranchers, for example, focused on a community that had a much less sophisticated understanding of the governing laws, little interaction with attorneys, and strong norms against resort to the legal system. See Ellickson, supra note 67, at 48-51, 60, 62.
396. Addison-Wesley Publ'g v. N.Y. Univ., No. 82-Civ-8333, 1983 WL 1134, at *2 (S.D.N.Y. 1983).
397. See Steven J. Melamut, 92 Law Libr. J. 157, 182 (2000);
398. Bernard Zidar, Fair Use and the Code of the Schoolyard: Can Copyshops Compile Coursepacks Consistent with Copyright?, 46 Emory L.J. 1363, 1377 (1997)
399. (citing Kenneth D. Crews, Copyright, Fair Use, and the Challenge for Universities 45 (1993)).
400. Basic Books v. Kinko's Graphics Corp., 758 F. Supp. 1522, 1534 (S.D.N.Y. 1991).
401. See, e.g., Princeton Univ. Press v. Mich. Document Servs., 99 F.3d 1381, 1384 (6th Cir. 1996).
402. See id. at 1387-88.
403. Cf. Omri Ben-Shahar, The Tentative Case Against Flexibility in Commercial Law, 66 U. Chi. L. Rev. 781, 784 (1999) (commenting on the danger that the UCC's incorporation provision will influence and alter development of customary practices);
404. McAdams, supra note 1, at 397-408 (describing interplay between norms and law).
405. See Bernstein, supra note 187, at 1814-15.
406. Gibson, supra note 123, at 884;
407. see also Loren, supra note 123, at 6-7;
408. Africa, supra note 123, at 1148-49.
409. Gibson, supra note 123, at 885.
410. Abhijit V. Benerjee, A Simple Model of Herd Behavior, 107 Q.J. Econ. 797, 798 (1992);
411. Sushil Bikhchandani et al., A Theory of Fads, Fashion, Custom, and Cultural Change as Informational Cascades, 100 J. Pol. Econ. 992, 994 (1992);
412. Eric A. Posner, supra note 1, at 1717-18.
413. Epstein, INS, supra note 1, at 86 (1992);
414. see also Jessica Litman, Copyright Legislation and Technological Change, 68 Or. L. Rev. 275, 312 & n.206 (1989) (describing the lack of representation of the public during copyright revision debates).
415. Cf. Zaring, supra note 81, at 345-47 (criticizing administrative agencies' reliance on industry statements of best practices in the absence of a public rulemaking and comment process).
416. Eric A. Posner, supra note 1, at 1709.
417. Id. at 1727.
418. Lloyd L. Weinreb, Custom, Law and Public Policy: The INS Case as an Example for Intellectual Property, 78 Va. L. Rev. 141, 146-47 (1992). I note that Weinreb's criticism of the use of custom in intellectual property cases seems somewhat inconsistent with his position taken elsewhere advocating that fair uses be determined on the basis of long-standing customary practices.
419. See Weinreb, supra note 28, at 1138-40.
420. Epstein, INS, supra note 1, at 123;
421. Epstein, The T.J. Hooper, supra note 1, at 12-13.
422. Saunders, supra note 46, at 165.
423. See discussion supra Subsection I.A.2.b & note 61.
424. See discussion infra Section III.B & Part IV.
425. See generally Carter, supra note 6, at 132 (arguing against courts' consideration of custom in IP cases due to the difficulty of jurists accurately determining what the applicable custom is).
426. Bernstein, supra note 1, at 778-80.
427. There is an opportunity for strategic behavior in the development of these guide-lines and policies-parties can write down what they wish the custom were, rather than what it actually is. The statements of best practices are examples of this strategy, although from the perspective of the smaller players. See discussion supra Subsection I.A.2.d; infra Sections IV.C-D. A prominent example of such behavior outside the IP context is in international law, where states often try to create an evidentiary record to establish or oppose customary law without regard to what the actual customary practice is.
428. See Mark Janis, An Introduction to International Law 54-55 (2003).
429. See, e.g., Edna Ullmann-Margalit, The Emergence of Norms 85-89 (1977);
430. Bernstein, supra note 1, at 714;
431. Ellickson, supra note 67, at 177-83;
432. Epstein, INS, supra note 1, at 101.
433. Epstein, INS, supra note 1, at 126.
434. But see Eric A. Posner, supra note 1, at 1698 (questioning the conclusion that close-knit communities develop optimal practices).
435. Ellickson, supra note 67, at 167,187,228,267,283.
436. Lemley, supra note 92, at 1267.
437. Id. at 1268-69.
438. See, e.g., Epstein, Confusion, supra note 2, at 822-29 (suggesting that parties may use custom in contract setting as a common ground of understanding or as an efficient shortcut for needing to negotiate specific contract terms);
439. cf. Epstein, The T.J. Hooper, supra note 1, at 7 (suggesting that following custom may provide useful certainty for involved parties).
440. Bernstein, supra note 187, at 1796;
441. Bernstein, supra note 1, at 769-70;
442. see also David Charny, Hypothetical Bargains: The Normative Structure of Contract Interpretation, 89 Mich. L. Rev. 1815, 1859 (1991).
443. Contract law does have a public policy or unconscionability exception, but it is generally narrowly construed.
444. Rodi Yachts v. Nat'l Marine, 984 F.2d 880, 889 (7th Cir. 1993) (emphasis added) (holding that customary practices determined negligence).
445. Epstein thinks strict liability should apply when third parties or strangers are injured. Epstein, The T.J. Hooper, supra note 1, at 4-5 & n.14. Courts, however, have not followed his suggestions for expanding strict liability.
446. See, e.g., Tex. & Pac. Ry. v. Behymer, 189 U.S. 468, 470 (1903);
447. The T.J. Hooper, 60 F.2d 737, 740 (2d Cir. 1932);
448. Mayhew v. Sullivan Mining Co., 76 Me. 100, 112 (1884);
449. Morris, supra note 3.
450. See, e.g., Jeremy Bentham, Principles of the Civil Code, in The Theory of Legislation 111, 137 (Boston, Weeks, Jordan & Co. 1840);
451. Stephen R. Munzer, A Theory of Property 28-31 (2000).
452. See, e.g., Carol M. Rose, Left Brain, Right Brain and History in the New Law and Economics of Property, 79 Or. L. Rev. 479, 485-86 (2000).
453. Carol M. Rose, Property and Expropriation: Themes and Variations on American Law, 2000 Utah L. Rev. 1, 19, 22.
454. U.S. Const, art. I, § 8, cl. 8.
455. Rosemont Enters, v. Random House, 366 F.2d 303, 307 (2d Cir. 1966).
456. See Rothman, Initial Interest Confusion, supra note 29, at 124-30, 190-91.
457. Lorne Manly, Times Hires Talent Agency, N.Y. Times, Aug. 17, 2006, at E2.
458. See, e.g., Rose, supra note 225, at 490-91;
459. see also Carol M. Rose, Canons of Property Talk, or Blackstone's Anxiety, 108 Yale L.J. 601, 625 (1998).
460. Charny, supra note 219, at 1823.
461. See Martha Albertson Fineman, The Autonomy Myth: A Theory of Dependency 20-22 (2004).
462. See id. at 106-07.
463. Relevant evidence is that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence" Fed. R. Evid. 401.
464. Nevertheless, relevant evidence is not admissible "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Fed. R. Evid. 403.
465. Bernstein, supra note 1, at 714-15.
466. See, e.g., Caterpillar, Inc. v. Walt Disney Co., 287 F. Supp. 2d 913, 917 (C.D. Ill. 2003);
467. Wham-O, Inc. v. Paramount Pictures Corp., 286 F. Supp. 2d 1254, 1257-58 (N.D. Cal. 2003).
468. Roy Exp. Co. Establishment of Vaduz v. CBS, Inc., 672 F.2d 1095 (2d Cir. 1982);
469. see also discussion supra Part II.
470. Although there was evidence in the case that CBS did clear clips used in some shows and obituaries and had sought a license in the instant case, the general practice in the television industry at the time was not to clear film clips when used in nightly news broadcasts or obituary segments. See Testimony of Robert Eaton, Roy Exp. Co. Establishment of Vaduz v. CBS, Inc., 503 F. Supp. 1137 (S.D.N.Y. 1980) (No. 78-Civ. 2417)
471. reprinted in Excerpts of Record at 682-93, 672 F.2d 1095 (2d. Cir. 1981) (Nos. 81-7027,81-7109).
472. Cf. Lemley, see supra note 92, at 1275.
473. Blackstone, supra note 4, at *76.
474. See, e.g., Eibel Process Co. v. Minn. & Ontario Paper Co., 261 U.S. 45, 56 (1923) (holding that the fact that two-thirds of the market had licensed a patent was "weighty evidence" that the patent was valid);
475. WMS Gaming Inc. v. Int'l Game Tech., 184 F.3d 1339, 1359-60 (Fed. Cir. 1999) (holding that the existence of a licensing market is evidence of nonobviousness);
476. see also 2 Donald S. Chisum, Chisum on Patents § 5.05[3] (2006).
477. See, e.g., John E. Thropp's Sons Co. v. Seiberling, 264 U.S. 320, 329-30 (1924) (discounting evidence of licensing when licensing was deemed a reasonable sum to "purchase .. . peace" and "a wise course for the smaller manufacturer");
478. EWP Corp. v. Reliance Universal, 755 F.2d 898, 907-08 (Fed. Cir. 1985) (noting that licensing is often driven by concerns other than validity, such as being "mutually beneficial" or being cheaper than defending an infringement action);
479. Dotolo v. Quigg, 12 U.S.P.Q.2d 1032, 1038 (D.D.C. 1989) (limiting consideration of licensing to circumstances in which patentee demonstrated that licensing was prompted by "non-obviousness of his product and not other business reasons, such as the cost of defending an infringement suit");
480. cf. Polydoros v. Twentieth Century Fox Film Corp., 79 Cal. Rptr. 2d 207, 212 (Ct. App. 1997) (rejecting argument that general clearance of names in film industry could form basis of negligence claim for the appropriation of plaintiff's identity, and noting that "[t]he industry custom of obtaining 'clearance' establishes nothing, other than the unfortunate reality that many filmmakers may deem it wise to pay a small sum up front for a written consent to avoid later having to spend a small fortune to defend unmeritorious lawsuits such as this one").
481. See supra note 163.
482. Filmmakers' Statement, supra note 19, at 1.
483. There still may be a fair use or use protected by the First Amendment in such an instance, but the customary practice is relevant to the initial question of consumer confusion.
484. See generally Eugene Volokh, The Mechanisms of the Slippery Slope, 116 Harv. L. Rev. 1026 (2003) (examining the characteristics and merits of "slippery slope" arguments in general).
485. See discussion supra Subsection I.B.3.
486. The Creative Commons license states, "Nothing in this license is intended to reduce, limit, or restrict any rights arising from fair use, first sale or other limitations on the exclusive rights of the copyright owner under copyright law or other applicable laws." Creative Commons, Legal Code, http://creativecommons.org/licenses/by-ncnd/2.5/legalcode (last visited Nov. 13, 2007).
487. I note that the new version 3.0 license states this somewhat differently: "Fair Dealing Rights. Nothing in this License is intended to reduce, limit, or restrict any uses free from copyright or rights arising from limitations or exceptions that are provided for in connection with the copyright protection under copyright law or other applicable laws." Id., http://creativecommons.Org/licenses/by-nc-nd/3.0/legalcode (last visited Nov. 13, 2007).