Fair use and copyright overenforcement

Iowa Law Review

Volumn 93, Issue 4, 2008, Pages 1271-1318

  Cotter, Thomas F ^a  

^a UNIVERSITY OF MINNESOTA LAW SCHOOL   (United States)

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EID: 41149146304     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (184)

1. See, e.g., PATRICIA AUFDERHEIDE & PETER JASZI, CTR. FOR SOC. MEDIA, UNTOLD STORIES: CREATIVE CONSEQUENCES OF THE RIGHTS CLEARANCE CULTURE FOR DOCUMENTARY FILMMAKERS (2004), available at http://www.centerforsocialmedia.org/rock/ backgrounddocs/printable_rightsreportpdf;
2. MARJORIE HEINS & TRICIA BECKLES, BRENNAN CTR. FOR JUSTICE, WILL FAIR USE SURVIVE?: FREE EXPRESSION IN THE AGE OF COPYRIGHT CONTROL (2005);
3. LAWRENCE LESSIG, FREE CULTURE: HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL CREATIVITY (2004);
4. James Gibson, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 YALE L.J. 883, 887-906 (2007);
5. William F. Patry & Richard A. Posner, Fair Use and Statutory Reform in the Wake of Eldred, 92 CAL. L. REV. 1639, 1655-56 (2004). To be sure, criticism of the current regime is not universal. Some thoughtful commentators, such as Christopher Yoo, argue in favor of a relatively robust bundle of copyright rights on the ground that strong copyright rights induce the production of substitutes for existing works and thus tend to minimize deadweight loss.
6. See generally Christopher S. Yoo, Copyright and Public Good Economics: A Misunderstood Relation, 155 U. PA. L. REV. 635 (2007) [hereinafter Yoo, Public Good Economics];
7. Christopher S. Yoo, Copyright and Product Differentiation, 79 N.Y.U. L. REV. 212 (2004) [hereinafter Yoo, Copyright and Product Differentiation]. The premise of this Article - that various features of the current copyright regime can result in the systematic overenforcement of copyright rights - may result in very different policy recommendations from those advocated by Yoo. Even so, the model presented in Part III would appear to be valid, as a formal matter, even if one accepts Yoo's thesis; the difference in policy emphases would flow from the very different weights Yoo and I might accord to the social benefits of copyright protection and to the positive externalities attributable to some unauthorized uses of purportedly copyrighted material. I also note at the outset that the assertion of weak or nonexistent intellectual property ("IP") rights is not limited to copyright or fair use doctrine in particular; patent and trademark owners, among others, may and sometimes do assert protection over subject matter that falls outside the scope of their IP rights as well. Thus, while the analysis presented herein is intended to assist in evaluating various reform measures relating to copyright, much of that analysis (including the mathematical model presented in Part III) could be adapted to evaluate other defenses or other IP rights. This Article's emphasis on fair use may be viewed as merely one example of a more generally applicable framework.
8. Lydia Loren, Mark Lemley, and Brett Frischmann have all previously made the general point that, to the extent the use of another's asset generates positive externalities that exceed the private value to the individual user, the owner of the asset may block the use, to the detriment of aggregate social welfare, if the value the owner expects to derive from so doing, though less than the increase in social welfare, exceeds the private value to the individual user. See Lydia Pallas Loren, Redefining the Market Failure Approach to Fair Use in an Era of Copyright Permission Systems, 5 J. INTELL. PROP. L. 1, 48-56 (1997);
9. see also Brett M. Frischmann & Mark A. Lemley, Spillovers, 107 COLUM. L. REV. 257, 298 (2007);
10. Brett M. Frischmann, An Economic Theory of Infrastructure and Commons Management, 89 MINN. L. REV. 917, 976-77 (2005);
11. Mark A. Lemley, Property, Intellectual Property, and Free Riding, 83 TEX. L. REV. 1031, 1061-62 (2005). Gideon Parchomovsky and Kevin Goldman also make this point, and contend (as do I in Part II of this Article) that the uncertainty surrounding current fair use doctrine leads to the underutilization of the doctrine.
12. See Gideon Parchomovsky & Kevin A. Goldman, Fair Use Harbors, 93 VA. L. REV. 1483, 1485-86, 1497-1502 (2007). My discussion above, like that of Loren and of Parchomovsky and Goldman, focuses on fair use as one salient example of this general phenomenon.
13. See LESSIG, supra note 1, at 248-56 (arguing that copyright owners should be required to publish their works or forfeit their copyrights prematurely). See generally Christopher Sprigman, Reform(aliz)ing Copyright, 57 STAN. L. REV. 485 (2004).
14. See WILLIAM W. FISHER III, PROMISES TO KEEP: TECHNOLOGY, LAW, AND THE FUTURE OF ENTERTAINMENT 202-16 (2004) (proposing an equipment levy as a means of compensating content producers) ;
15. Neil W. Netanel, Impose a Noncommercial Use Levy to Allow Free Peer-to-Peer File Sharing, 17 HARV. J.L. & TECH. 1, 74-83 (2003) (similar).
16. See JESSICA LITMAN, DIGITAL COPYRIGHT 180-83 (2001) (proposing a reformulation of copyright as an exclusive right to commercial exploitation);
17. cf. Sara K. Stadler, Copyright as Trade Regulation, 155 U. PA. L. REV. 899, 957-58 (2007) (stating that "the problem with fair use is not that the defense is too narrow, but that the rights to which it makes an exception are too broad" and that perhaps a better alternative would be to confine the copyright owner to the right to distribute copies to the public).
18. See WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF INTELLECTUAL PROPERTY LAW 115 (2003) (criticizing the four-factor approach); Patry & Posner, supra note 1, at 1644-45 (similar). For the record, the four factors are set forth in Copyright Act section 107, which states: Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, 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. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. 17 U.S.C § 107 (2000). With respect to the first factor, evidence that the use serves one of the listed purposes (e.g., for criticism or commentary), is noncommercial, or is transformative, is said to weigh in favor of fair use.
19. See Thomas F. Cotter, Gutenberg's Legacy: Copyright, Censorship, and Religious Pluralism, 91 CAL. L. REV. 323, 371 (2003) (providing citations). With respect to the second, the fact that the work is fictional or unpublished weighs against fair use. See id. at 376-77. With respect to the third, the more the defendant appropriated, in either a quantitative or qualitative sense, the less likely the use is fair; the overriding question behind the third factor is whether the defendant took more than was necessary to achieve its end. See id. at 378. And with respect to the fourth factor, courts are directed to consider whether the use, if widespread, would deprive the copyright owner of substantial licensing revenue. See id. at 379. Occasionally courts consider other factors as well, such as whether the defendant acted in bad faith or, alternatively, first sought a license from the owner. See id. at 371. The extent to which courts actually rely upon the factors, as opposed to citing them as post-hoc rationalizations for what they perceive to be correct results, is an ongoing question.
20. See David Nimmer, "Fairest of Them All" and Other Fairy Tales of Fair Use, 66 LAW & CONTEMP. PROBS. 263, 281-82 (2003) (arguing that "[c]ourts tend first to make a judgment that the ultimate disposition is fair use or unfair use, and then align the four factors to fit that result as best they can" and that "it is largely a fairy tale to conclude that the four factors determine resolution of concrete fair use cases"); Patry & Posner, supra note 1, at 1645 ("All section 107 really amounts to in practical terms is confirmation that the courts are entitled to allow in the name of fair use a certain undefined amount of unauthorized copying from copyrighted works.").
21. But see Barton Beebe, An Empirical Study of the U.S. Copyright Fair Use Opinions, 1918-2005, 156 U. PA. L. REV. 549, 590-91 (2008) (disagreeing with Nimmer's assertion that "the factors 'tend to degenerate into post-hoc rationales for antecedent conclusions'") (quoting 4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 13.05, at 13-206 (2007)). If nothing else, the malleability of the factors can lead to unpredictable results. See Nimmer, supra, at 287.
22. U. It may be quite difficult for U to predict, however, when these latter conditions are present.
23. But see LANDES & POSNER, supra note 6, at 117 (noting that some would-be users of small portions of a work might purchase a copy of the entire work, even if fair use did not excuse the use; even so, the transaction cost "would be very high: it would be the difference between the price of the book and the value to the copier of the chapter that he copied").
24. See infra notes 13-16 and accompanying text; see also infra Part IV.A.
25. See REGISTER OF COPYRIGHTS, U.S. COPYRIGHT OFFICE, REPORT ON ORPHAN WORKS 5 (2006) [hereinafter ORPHAN WORKS], available at http://www.copyright.gov/orphan/orphan-report-full.pdf.
26. See Robert P. Merges, Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organizations, 84 CAL. L. REV. 1293, 1295-96 (1996).
27. 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, 579-80 (1998).
28. But see Julie E. Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of "Rights Management," 97 MICH. L. REV. 462, 475-559 (1998) (disputing Bell's thesis).
29. See ROGER D. BLAIR & THOMAS F. COTTER, INTELLECTUAL PROPERTY: ECONOMIC AND LEGAL DIMENSIONS OF RIGHTS AND REMEDIES 38-41 (2005). Perhaps these concerns can be exaggerated, however, particularly if liability rules have other virtues in comparison with property rules in a given context.
30. See IAN AYRES, OPTIONAL LAW: THE STRUCTURE OF LEGAL ENTITLEMENTS 133-35 (2005). I thank Rob Merges for directing my attention to Ayres's discussion of this point, and I note that Gibson also cites Ayres for the same point. See Gibson, supra note 1, at 945 n.249.
31. See 17 U.S.C. § 104A(d)(3) (2000) (authorizing owners of derivative works based on "restored works," as defined by 17 U.S.C. § 104A(h) (6), to continue using derivative works upon payment of reasonable compensation); id. § 111(c) (providing for compulsory licensing for secondary transmissions by cable systems); id. §§ 112(e), 114(d)(2), (f) (providing for compulsory licensing of copyrights in sound recordings for use in digital transmission subscription services); id. § 115 (providing for compulsory licensing of musical compositions for use in phonorecords); id. § 116(c) (providing for arbitration of disputes between owners of copyrights to musical compositions and jukebox operators, in the event that negotiations fail); id. § 118 (providing for compulsory licensing of works for use by public broadcasting entities); id. § 119(a) (providing for compulsory licensing for satellite retransmissions); id. § 122(a) (providing for compulsory licensing for secondary transmissions by satellite carriers); id. § 405(b) (authorizing the court to allow an infringer to continue using work upon payment of reasonable license fee, in certain cases involving innocent infringement).
32. See infra Part IV.A.
33. See LANDES & POSNER, supra note 6, at 116. There may also be instances in which a rule that required payment as a condition of use would degrade the value of the use or have other negative consequences. For example, Wendy Gordon has argued that more widespread use of liability rules in copyright would (1) enable "industry lobbyists more easily [to] argue in favor of even greater copyright extensions" and (2) potentially undermine the creative process. Wendy J. Gordon, Excuse and Justification in the Law of Fair Use: Transaction Costs Have Always Been Only Part of the Story, 50 J. COPYRIGHT SOC'Y U.S.A. 149, 194 (2003) [hereinafter, Gordon, Excuse and Justification]. Apropos of the latter, Gordon suggests that "[i]f . . . an author could only expect money, her perception of her task - and the quality of what she produces - could degrade," and in addition that "a requirement of ubiquitous payment may erode everyone's sense of indebtedness to the community" by promoting "the illusion that we are not net recipients." Id. at 195, 196.
34. Gordon expands upon the degradation point in Wendy J. Gordon, Render Copyright unto Caesar: On Taking Incentives Seriously, 71 U. CHI. L. REV. 75, 78, 87-89 (2004) [hereinafter Gordon, Incentives] (defending the thesis that "imposing a duty to pay for use might in particular be inappropriate for . . . persons who are peculiarly well placed to be motivated by perceptions of gift because they have a personal relationship to the text").
35. See Gordon, Excuse and Justification, supra note 16, at 154.
36. For a good summary of the literature on endowment effects and related phenomena, see Russell Korobkin, The Endowment Effect and Legal Analysis, 97 NW. U. L. REV. 1227, 1232-42 (2003).
37. For a more recent, skeptical assessment, see Charles R. Plott & Kathryn Zeiler, The Willingness to Pay - Willingness to Accept Gap, the "Endowment Effect," Subject Misconceptions, and Experimental Procedures for Eliciting Valuations, 95 AM. ECON. REV. 530, 531-32 (2005).
38. See Russell Korobkin, The Status Quo Bias and Contract Default Rules, 83 CORNELL L. REV. 608, 654 (1998).
39. See Cass R. Sunstein, Lives, Life-Years, and Willingness to Pay, 104 COLUM. L. REV. 205, 229-30 (2004).
40. O, if some measure of utility other than willingness to pay applies - perhaps due to a normative judgment that permitting a particular use (say, a use for purposes of self-defense) is appropriate, regardless of whether the owner objects.
41. S.
42. A static analysis would probably uncover more such positive externalities than would a dynamic analysis that takes into account the possible negative effects of an overly expansive fair use exception upon the ex ante incentive to create and publish. Ideally, policymakers should take these potential dynamic effects into account as well, in determining whether on balance a specific use is likely to give rise to positive externalities. This qualification makes the analysis much more complicated, to say the least. See infra notes 49-54 and accompanying text.
43. See 17 U.S.C. § 107 (2000).
44. See LANDES & POSNER, supra note 6, at 117-18. If the quotation is longer than is necessary to make the point, however, it threatens to supplant demand for the original, and is therefore less likely to be fair use.
45. See Wendy J. Gordon, Fair Use as Market Failure: A Structural and Market Analysis of the Betamax Case and Its Predecessors, 82 COLUM. L. REV. 1600, 1631-32 (1982). More generally, forbidding certain uses might inhibit the flow of ideas and thus undermine the purpose of copyright itself.
46. See, e.g., Thomas F. Cotter, Memes and Copyright, 80 TUL. L. REV. 331, 384-87 (2005).
47. See Ben Depoorter & Francesco Parisi, Fair Use and Copyright Protection: A Price Theory Explanation, 21 INT'L REV. L. & ECON. 453, 460-61 (2002).
48. See Thomas F. Cotter, The Procompetitive Interest in Intellectual Property Law, 48 WM. & MARY L. REV. 483, 541-44 (2006).
49. For other examples of situations in which the public interest in widespread access may weigh in favor of a finding of fair use, see, e.g., Mark A. Lemley, Should a Licensing Market Require Licensing?, 70 LAW & CONTEMP. PROBS. 185, 188 n.15, 193-95 (2007).
50. See Frischmann & Lemley, supra note 2, at 258.
51. See supra note 16.
52. 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), reprinted in 1976 U.S.C.C.A.N. 5681, 5681-88.
53. For discussions of the contours of the debate, see Cotter, supra note 25, at 390-94 (discussing critical engagements, satire, and burlesque) and Cotter, supra note 27, at 541-44 (discussing reverse engineering of software).
54. The mere fact that one has engaged in such a use, however, does not give rise to a legal presumption of fair use. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 581 (1994).
55. Law No. 2003-517 of Aug. 1, 2003, Journal Officiel de la République Française [J.O.] [Official Gazette of France], Aug. 2, 2003, Art. L. 211-3, translated at http://195.83.177.9/upl/pdf/code_35. pdf;
56. Urheberrechtsgesetz [Copyright Law], July 16, 1998, pt. 1, ch. 6 (F.R.G.) [hereinafter German Copyright Law], translated at http://www.wipo.int/ clea/docs_new/pdf/en/de/de080en.pdf.
57. See Brian F. Fitzgerald, Digital Property: The Ultimate Boundary?, 7 ROGER WILLIAMS U. L. REV. 47, 94 (2001) (discussing commonwealth nations' fair dealing doctrine). At least one recent Canadian case, however, interprets "fair dealing" in a manner that is somewhat closer to fair use than has been apparent in other fair dealing cases. See CCH Canadian Ltd. v. Law Soc'y of Upper Can., [2004] 1 S.C.R. 339, 2004 SCC 13 (Can.).
58. A risk-averse person, "when faced with a choice between two gambles with the same expected value . . . will choose the one with a smaller variability of return." WALTER NICHOLSON, MICROECONOMIC THEORY 250 (5th ed. 1992). In the present context, a risk-averse litigant would be willing to pay a risk premium R to "ensure an immediate payoff (or payout) below the actuarial value of litigating to judgment." Thomas F. Cotter, Antitrust Implications of Patent Settlements Involving Reverse Payments: Defending a Rebuttable Presumption of Illegality in Light of Some Recent Scholarship, 71 ANTITRUST L.J. 1069, 1073 (2004) (citing NICHOLSON, supra, at 250).
59. The value of an injunction would include the value of the future stream of royalties, if any, from U, in the event the parties agree to a license subsequent to the entry of judgment and also any positive effect on the value O can extract from other users - this value will diminish if U prevails.
60. S. With some exceptions, the First Amendment largely precludes courts from comparing social and private utilities in this fashion.
61. F equals either 0 or 1, in which case U either forgoes use or uses without permission, respectively.
62. O = 600. γ = 1/6 < (4/3 - 1)x = 0.2, thus deterring U from use. If U were to use without permission, her expected payoff would be 0.75(100) - 0.25(0.6) (600) = -15.
63. See Gordon, Excuse and Justification, supra note 16, at 154; Gordon, Incentives, supra note 16, at 87-89.
64. See, e.g., Kenneth W. Dam, The Economic Underpinnings of Patent Law, 23 J. LEGAL STUD. 247, 247 (1994).
65. Even with the institution of exclusive rights, creators are unlikely to reap all of the social benefit of their creations. An appropriability problem remains, albeit one of lesser magnitude, and the production of new works may remain suboptimal. See, e.g., Yoo, Copyright and Product Differentiation, supra note 1, at 256-57. Measures designed to increase creators' ability to appropriate - to internalize the positive externalities of their work - nevertheless are likely to be counterproductive after some point, due in part to excessive transaction costs. See Frischmann & Lemley, supra note 2, at 277-79.
66. As noted above, however, a few other commentators have spotted this issue before. See generally sources cited supra note 2.
67. 2 were not insurmountable. To the extent the assertion of fair use relies on the externalities rationale instead, however, the second user's bypassing of the licensing market should not be dispositive.
68. See supra note 35 and accompanying text.
69. U < 0, unless U is an extreme risk-lover. On these facts, U would forgo use because of the small potential for incurring costs that are disproportionate to the value of the use; risk aversion would make her even more likely to avoid the use.
70. Book reviewers, for example, already do capture some of the surplus generated by their reviews to the extent the original portions of the reviews themselves are subject to copyright protection. But it is unlikely they extract all of the value through typical pricing mechanisms, insofar as one reader can pass ideas to one another with impunity and even physical copies of the review can be redistributed after the lawful first sale.
71. See HEINS & BECKLES, supra note 1, at 57.
72. See Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089, 1105-06 (1972);
73. cf. Dale A. Nance, Guidance Rules and Enforcement Rules: A Better View of the Cathedral, 83 VA. L. REV. 837, 870-71 (1997).
74. See Calabresi & Melamed, supra note 49, at 1105-06.
75. See supra notes 13-14 and accompanying text.
76. See BLAIR & COTTER, supra note 13, at 29-30.
77. See N.Y. Times Co. v. Tasini, 533 U.S. 483, 505 (2001); Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 n.10 (1994); see also eBay Inc. v. MercExchange L.L.C., 126 S. Ct. 1837, 1840 (2006).
78. Following the Supreme Court's decision in eBay, 126 S. Ct. 1837 (2006), courts have begun to apply the traditional four-factor test for determining whether to award injunctive relief in patent and copyright actions. See, e.g., Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 518 F. Supp. 2d 1197 (C.D. Cal. 2007) (stating that, post-eBay, copyright owners may show irreparable harm based upon evidence such as of loss of market share, reputational harm, the defendant's inability to pay a damages award, or the vulnerability of the plaintiff's works to future infringement); z4 Techs., Inc. v. Microsoft Corp., 434 F. Supp. 2d 437, 439-44 (E.D. Tex. 2006) (concluding that the patentee was not entitled to injunctive relief because, inter alia, it did not face irreparable harm from the loss of market share or brand-name recognition attributable to Microsoft's inclusion of infringing software in its Windows operating system; the infringing software was but a small component of the operating system; and Microsoft's inability to use the infringing software pending a design-around would have left Windows itself vulnerable to infringement). But even post-eBay there appear to be very few copyright cases in which courts have declined to award the prevailing plaintiff injunctive relief. The only two cases of which I am aware both involved the rather specialized world of architectural copyrights. See Christopher Phelps & Assocs., LLC v. Galloway, 492 F.3d 532, 542-47 (4th Cir. 2007) (declining to enjoin the defendant from selling or leasing infringing house, but ordering the return of infringing plans); Allora, LLC v. Brownstone, Inc., Civ. No. 1:07CV87, 2007 WL 1246448, at *4-8 (W.D.N.C. Apr. 27, 2007) (declining to enjoin the defendant from completing three houses already under construction, but enjoining the infringing use of the copyright in advertising). Perhaps future courts will be less willing to award injunctive relief, however, in cases such as Woods v. Universal City Studios, Inc., 920 F. Supp. 62 (S.D.N.Y. 1996), in which the plaintiff obtained an injunction against the exhibition of an already released film, based upon the defendant's having based three short scenes in the film on the plaintiff's drawing. It seems unlikely that the plaintiff in Woods faced a loss of future market share or reputation, and the plaintiff's work comprised but a small portion of the defendant's film. See id. at 65.
79. Conceivably, it also may reduce the incentive on the part of users to develop their own institutions for internalizing externalities. See infra Part V.
80. O; the former rule might be more susceptible to erroneous application, if nothing else. If so, an overly expansive fair use doctrine may undermine dynamic efficiency.
81. Consider, for example, the reverse-engineering cases. A finding of fair use is consistent with the premise that the social value of competition (including the dynamic aspect of competition, insofar as it encourages future innovation) exceeds both the private value to the owner and the potential negative impact upon copyright incentives. This conclusion may well be correct, particularly if network effects are present. See Cotter, supra note 27, at 530, 541-42. The opposite premise, that the harm to socially valuable incentives exceeds the social value of increased competition, would counsel against a finding of fair use (or other exemptions from copyright liability). See id. at 542-44. In a related vein, in some instances fair use also may frustrate copyright owners' efforts to price discriminate. Professor Picker presents a simple thought experiment to illustrate the point. See Posting of Randal S. Picker to The University of Chicago Law School Faculty Blog, More Google Print: Fair Use and Inefficient Bundling, http://uchicagolaw.typepad.com/faculty/2005/ll/more_google_pri.html (Nov. 11, 2005). Whether this consequence is viewed as positive or a negative depends upon the welfare consequences of price discrimination, which can be ambiguous. See Cotter, supra note 27, at 545-49 (citing sources).
82. U, even if it simultaneously places some unauthorized uses out of reach of some users and may render outcomes more predictable and, consequently, more affordable for some users.
83. See supra text accompanying note 13.
84. See supra note 16.
85. See Gordon, Excuse and Justification, supra note 16, at 188 (citing Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 330-31 (1996)).
86. See supra notes 53-54 and accompanying text.
87. See Mark A. Lemley, The Economics of Improvement in Intellectual Property Law, 75 TEX. L. REV. 989, 1063-65 (1997).
88. See Stewart E. Sterk, Rhetoric and Reality in Copyright Law, 94 MICH. L. REV. 1197, 1215-16 (1996) (arguing that the right to prepare derivative works typically does not provide a strong incentive for the creation of new works).
89. See C. Edwin Baker, First Amendment Limits on Copyright, 55 VAND. L. REV. 891, 899-904 (2002);
90. Hon. Alex Kozinski & Christopher Newman, What's So Fair About Fair Use?, 46 J. COPYRIGHT SOC'Y U.S.A. 513, 521-23 (1999);
91. John Tehranian, Whither Copyright? Transformative Use, Free Speech and an Intermediate Liability Proposal, 2005 BYU L. REV. 1201, 1226-27; see also Lemley, supra note 27, at 192-93 & n.46 (arguing that, in cases involving transformative but non-fair uses, providing copyright owners with appropriate compensation, but not control over the infringing work, would avoid enjoining the publication of inseparable, noninfringing material);
92. Maureen A. O'Rourke, Toward a Doctrine of Fair Use in Patent Law, 100 COLUM. L. REV. 1177, 1203 (2000) (arguing in favor of a patent fair use doctrine, under which fair users would be required to pay compensation);
93. Jed Rubenfeld, The Freedom of Imagination: Copyright's Constitutionality, 112 YALE L.J. 1, 16-21 (2002) (arguing that according copyright owners a right to recover the derivative author's profits attributable to the underlying work would be consistent with the First Amendment, but that compensatory damages and injunctive relief are not).
94. See Sterk, supra note 64, at 1216.
95. See 2 PAUL GOLDSTEIN, COPYRIGHT § 5.3, at 5:81 (2002). The normative question of whether encouraging such spinoffs is good or bad policy depends upon one's vision of the good society. See Cotter, supra note 25, at 398-401. In addition, permitting the unauthorized creation of derivative works that might substitute for the underlying work would tend to undermine incentives to produce underlying works. To the extent a derivative work transforms the underlying work, the substitution effect is reduced but perhaps not eliminated altogether. See Ty, Inc. v. Publ'ns Int'l Ltd., 292 F.3d 512, 518 (7th Cir. 2002).
96. In theory, if too many users want to prepare derivative works based upon the same underlying work, the market for such derivative works may become prematurely saturated, leaving consumers worse off than they would be if the owner of the underlying work could coordinate production of derivative works. For example, the first film version on a novel may exhaust public demand for a second film version (for a time, at least), even if the first film is of lower quality than some hypothetical authorized alternative version would have been. Or perhaps no one will invest in making a film version out of fear that other versions that may be in the works will divide the market so that no one makes a profit. An exclusive right to prepare derivative works may increase social wealth by preventing the negative effects of such copyright races - but the evidence is far from clear. Theoretical and empirical studies of the analogous phenomenon of patent races point in different directions. See BLAIR & COTTER, supra note 13, at 112-13. And one can certainly come up with anecdotal evidence (e.g., the spate of Jane
97. A translation, for example, is a type of derivative work. See 17 U.S.C. § 101 (Supp. 2005) (defining a "derivative work"). A translation that inaccurately communicates the message intended by the author of an underlying work could be viewed as undermining the integrity of the underlying work, see MILAN KUNDERA, TESTAMENTS BETRAYED: AN ESSAY IN NINE PARTS 101-20 (Linda Asher trans., 1995), and the exclusive right to prepare derivative works as vindicating interests similar to those that are the subject of moral rights laws in other countries.
98. See Thomas F. Cotter, Pragmatism, Economics, and the Droit Moral, 76 N.C. L. REV. 1, 1 (1997). Kundera himself no longer permits translations into his native Czech of the more recent work he has authored in French.
99. See Jacques Mélitz, English-Language Dominance, Literature, and Welfare (Ctr. for Research in Econ. & Statistics ("CREST"), Working Paper, Apr. 2000), available at http://www.crest.fr/pageperso/melitz/lit100.htm;
100. see also Laura R. Bradford, Parody and Perception: Using Cognitive Research to Expand Fair Use in Copyright, 46 B.C. L. REV. 705, 756 (2005) ("[W]orks themselves may be less desirable for consumption if their meanings are altered.").
101. Worldwide Church of God v. Phila. Church of God, Inc., 227 F.3d 1110 (9th Cir. 2000).
102. See Cotter, supra note 6, at 364-86. In a recent paper, Mark Lemley presents an interesting argument that, in cases in which the copyright plaintiff successfully asserts that a use is not fair because the defendant could have paid for and obtained a license from the plaintiff, the defendant should be permitted to continue the use upon payment of the licensing fee. See Lemley, supra note 27, at 195. A plaintiff's dissatisfaction with this result would suggest that the plaintiff's opposition to the use is "a front for what is really an interest in forbidding the use and foregoing licensing revenue." Id. To the extent that a successful assertion of the fair use defense turns on the feasibility of licensing ex ante, this suggestion makes sense if, as Lemley asserts, "it is a simple exercise for a court to assess damages in such a case." Id. The extent to which other considerations, however, including the social value of the use and the validity of the plaintiff's interest, if any, in moral-rights-like protection, see id. at 195 n.65, are relevant, the substitution of a liability for a property rule presents further, though perhaps not insurmountable, difficulties. See supra notes 49-62 and accompanying text.
103. See Worldwide Church of God, 227 F.3d at 1113.
104. See Cotter, supra note 6, at 360-62 (providing examples).
105. One might think of such cases as involving "partial merger." The merger doctrine states that copyright protection does not subsist when the ideas in a given work merge with its expression; that is, when there is only one way or a small number of ways of expressing those ideas. See, e.g., Educ. Testing Servs. v. Katzman, 793 F.2d 533, 539 (3d Cir. 1986). As stated, the doctrine obscured several normative issues, such as what "counts" as an idea and how many ways of expressing it are "small." But one thing that does seem reasonably clear is that courts apply the doctrine only when the need to access the text in haec verba is (more or less) universal. The doctrine does not apply when most users could get by with a paraphrase, even though for some class of users access to the exact text is necessary. See Cotter, supra note 25, at 386-87. In this type of case, courts should consider accommodating the latter class through fair use or, perhaps better, by means of a liability rule.
106. Consider, for example, the decision by the National Science Association and the National Science Teachers Association to refuse permission to the State of Kansas to include its science education standard manuals in the state science curriculum after the state authorized the teaching of intelligent design theory as an alternative to evolution. See Jennifer Granick, Evolutionists Are Wrong!, WIRED NEWS, Nov. 9, 2005, http://www.wired. com/news/print/0,1294,69512,00.html. Granick describes intelligent design theory as "junk," but she also characterizes the refusal to license as akin to other efforts by copyright owners to "squelch speech" and suggests the possible applicability of copyright misuse. See id. In my view, however, neither fair use nor the misuse doctrine should condemn the refusal to license in this instance, absent evidence that the state is unable to obtain adequate substitutes from other sources or to create its own - a matter that Granick's discussion does not touch upon. Otherwise copyright entitlements become indistinguishable from compulsory licenses.
107. See eBay Inc. v. MercExchange L.L.C., 126 S. Ct. 1837, 1841 (2006); see also supra notes 53-54 and accompanying text.
108. HEINS & BECKLES, supra note 1, at 56, 57.
109. Heins and Beckles suggest their proposal would be an extension of 17 U.S.C. § 504(c)(2) (2000), discussed infra at text accompanying notes 79-81. See HEINS & BECKLES, supra note 1, at 58 n.31.
110. See 17 U.S.C. § 504(c)(1). For willful infringement, the upper amount can be as high as $150,000. See id. § 504(c)(2) (first sentence). Where the "infringer sustains the burden of proving . . . that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court . . . may reduce the award of statutory damages to a sum of not less than $200." Id. (second sentence). Given the difficulty of proving actual damages in the form of lost profits or royalties, or defendant's profits attributable to the infringement, it is possible (though by no means certain) that awards of statutory damages are necessary to preserve the copyright incentive scheme (i.e., to ensure that copyright owners ultimately are no worse off as a result of having their works infringed). See BLAIR & COTTER, supra note 13, at 74-83.
111. See HEINS & BECKLES, supra note 1, at 58-59 n.31 (citing 17 U.S.C. § 504(c)(2) (third sentence)). The third sentence of § 504(c)(2) also exempts public broadcasters from statutory damages for public performances of nondramatic literary works and for reproductions of transmission programs embodying performances of such works. 17 U.S.C. § 504(c)(2) (third sentence). There appear to be no reported decisions construing this sentence, though, as Nimmer and Nimmer observe, the language appears to contemplate that the defendant's conduct "must not only be in good faith, but must also be reasonable." 4 NIMMER & NIMMER, supra note 6, § 14.04[B][2][b], at 14-76 (2006). The House Report accompanying the 1976 Copyright Act also states, without explanation, that in applying this sentence "the burden of proof with respect to the defendant's good faith should rest on the plaintiff." 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 163 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5779.
112. The Copyright Act also permits statutory damages to be reduced to as little as $200 in cases in which the plaintiff omitted copyright notice from the work the defendant copied. See 17 U.S.C. § 504(c)(2) (second sentence); id. § 401(d) ("If a notice of copyright . . . appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant's interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504(c)(2)." (emphasis added)). As noted supra at note 80 and accompanying text, the last sentence of § 504(c)(2) extends an additional good-faith defense to only a limited class of users. The Act also forbids statutory damages altogether, thus relegating the plaintiff to the (usually) more uncertain realm of lost profits or restitutionary awards, when the plaintiff fails to register his copyright within three months from the earlier of first publication or infringement. See id. § 412; see also ORPHAN WORKS, supra note 10, at 115, 127 (recommending, inter alia, eliminating statutory damages for infringement of qualifying orphan works).
113. Law-and-economics literature makes extensive use of the multiplier concept in the context of damages awarded to plaintiffs. A common example is that of a defendant who breaches a legal duty - thus conferring upon himself an illicit benefit, or causing the plaintiff an unwanted harm, of $X. If the plaintiff detects the breach on average only 1/y of the times it occurs, the optimal damages award is yX. An award of actual damages or restitution (X) would provide no disincentive to commit the breach. For an overview of the literature, see Thomas F. Cotter, An Economic Analysis of Enhanced Damages and Attorney's Fees for Willful Patent Infringement, 14 FED. CIR. BJ. 291, 308-14 (2004).
114. Windsurfing Int'l, Inc. v. AMF, Inc., 782 F.2d 995, 1001 (Fed. Cir. 1986) (quoting Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 343 (1971)). The case law is surprisingly vague about exactly when purgation occurs. See, e.g., B.B. Chem. Co. v. Ellis, 314 U.S. 495, 498 (1942); Preformed Line Prods. Co. v. Fanner Mfg. Co., 328 F.2d 265, 279 (6th Cir. 1964).
115. Lasercomb Am., Inc. v. Reynolds, 911 F.2d 970, 978 (4th Cir. 1990); see also Alcatel USA, Inc. v. DGI Techs., Inc., 166 F.3d 772, 783-84, 793-94 (5th Cir. 1999); Practice Mgmt. Info. Corp. v. Am. Med. Ass'n, 121 F.3d 516, 517-20 (9th Cir. 1997).
116. See Cotter, supra note 27, at 539-40. Critics, including myself, have questioned this aspect of the misuse doctrine as well as the application of the doctrine in some of the case law. See id.; Thomas F. Cotter, Misuse, 44 HOUS. L. REV. 901, 961-62 (2007);
117. Mark A. Lemley, Comment, The Economic Irrationality of the Patent Misuse Doctrine, 78 CAL. L. REV. 1599, 1614-20 (1990).
118. Compare Assessment Techs., LLC v. WIREdata, Inc., 350 F.3d 640, 647 (7th Cir. 2003), with USM Corp. v. SPS Techs., Inc., 694 F.2d 505, 512 (7th Cir. 1982). In Assessment Technologies, Judge Posner stated: The argument for applying copyright misuse beyond the bounds of antitrust . . . is that for a copyright owner to use an infringement suit to obtain property protection, here in data, that copyright law clearly does not confer, hoping to force a settlement or achieve an outright victory over an opponent that may lack the resources or the legal sophistication to resist effectively, is an abuse of process. Assessment Technologies, 350 F.3d at 647. In his earlier opinion in USM Corp., Judge Posner expressed more skeptical thoughts on misuse: "Our law is not rich in alternative concepts of monopolistic abuse; and it is rather late in the day to try to develop one without in the process subjecting the rights of patent holders to debilitating uncertainty." USM Corp., 694 F.2d at 512.
119. For empirical evidence of hindsight bias in patent law, see generally Gregory N. Mandel, Patently Non-Obvious: Empirical Demonstration that the Hindsight Bias Renders Patent Decisions Irrational, 67 OHIO ST. L.J. 1391 (2006).
120. See Cotter, supra note 27, at 539-40; Cotter, supra note 85, at 961-62.
121. See Kathryn Judge, Note, Rethinking Copyright Misuse, 57 STAN. L. REV. 901, 950-51 (2004).
122. See Jason Mazzone, Copyfraud, 81 N.Y.U. L. REV. 1026, 1037-38 (2006).
123. This is not to say that it is always easy to determine whether a work is copyrightable. Reasonable minds may differ on the question of whether a work manifests sufficient originality with respect to expression, selection, or arrangement to qualify for copyright protection; or whether the merger or scenes à faire doctrine applies. And there can even be cases in which it is unclear whether a copyrighted work has fallen into the public domain: for example, where it is unclear whether the author forfeited his copyright by publishing his work prior to March 1, 1989, without copyright notice. What Mazzone rightly targets, however, is the assertion of copyright in the entirety of a work that is clearly within the public domain based upon the claimant's addition of some small amount of arguably copyrightable expression, selection, or arrangement.
124. See infra Part IV.F.
125. Mazzone himself does not argue in favor of such a cause of action, but rather for vesting a federal agency with authority to "investigat[e] patterns of interference with fair use and bring[] actions to recover fines." Mazzone, supra note 90, at 1296. I confess to having doubts that the proposed mandate would amount to a major priority for the federal government, however.
126. 17 U.S.C. § 505 (2000).
127. Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994).
128. Id.
129. Id.
130. Id. at 535 n.19 (quoting Lieb v. Topstone Indus. Inc., 788 F.2d 151, 156 (3d Cir. 1986)).
131. See 4 NIMMER & NIMMER, supra note 680, § 14.10[D][3][b], at 14-203 to -204. As Nimmer and Nimmer state: Post-Fogerty cases awarding fees to prevailing defendants still tend to focus on the plaintiff's bad faith motivation . . . , hard ball tactics . . . or objective unreasonableness .... Conversely, they tend to deny attorney's fees to prevailing defendants when the plaintiff's claims were neither frivolous nor motivated by bad faith. By the same token, there is typically no award of fees in cases involving issues of first impression or advancing claims that were neither frivolous nor objectively unreasonable. Id.
132. Some defendants, for example, may settle rather than incur the cost of litigating a nuisance suit to victory, thus encouraging other potential defendants to engage in compliance beyond the level that the law requires. Alternatively, some plaintiffs may not bother to enforce their rights, thus encouraging other potential defendants to undercomply with impunity.
133. See John J. Donohue III, Opting for the British Rule, or If Posner and Shavell Can't Remember the Coase Theorem, Who Will?, 104 HARV. L. REV. 1093, 1099-1102, 1118 (1991) (arguing that, if transaction costs were zero, then adopting either the American or English rule would have no effect on the rate of settlement; but that the English rule is, in general, likely to be the more efficient rule).
134. Assessment Techs. LLC v. WIREdata, Inc., 361 F.3d 434, 436-37 (7th Cir. 2004).
135. Id. at 436.
136. Id. at 436-37 (internal citations omitted); see also Lucian Arye Bebchuk & Howard F. Chang, An Analysis of Fee Shifting Based on the Margin of Victory: On Frivolous Suits, Meritorious Suits, and the Role of Rule 11, 25 J. LEGAL STUD. 371, 397 (1996) ("[I]f there is an excessive incentive to sue in the absence of fee shifting, then the ideal fee-shifting rule would impose a net expected cost on the plaintiff in the marginal case.").
137. 4NIMMER & NIMMER, supra note 6, § 14.10[D] [3] [b], at 14-209.
138. Assessment Techs., 361 F.3d at 436.
139. Michael J. Meurer, Controlling Opportunistic and Anti-Competitive Intellectual Property Litigation, 44 B.C. L. REV. 509, 537-38 (2003). Meurer's article does not discuss fair use as such, but he makes some interesting recommendations for reducing the anticompetitive assertion of IP rights through such means as restricting the availability of preliminary injunctions and modifying existing law to make it easier for defendants to obtain summary judgment, as well as by awarding attorney's fees.
140. F and award fees to the prevailing plaintiff under an even-handed approach.
141. U, or that finds fair use when these conditions are not present, is therefore inaccurate in the sense used above. Put another way, measures that increase accuracy are synonymous with measures that reduce the risk of error.
142. See infra Part IV.F.
143. See infra notes 112-15 and accompanying text. Note that fair use is a mixed question of fact and law. In general, the defendant has the burden of producing evidence of the facts relevant to a finding of a fair use. The court is then charged with drawing the correct legal inferences based on those facts. See Mattel Inc. v. Walking Mountain Prods., 353 F.3d 792, 800 (9th Cir. 2003).
144. But see Glynn S. Lunney, Jr., Fair Use and Market Failure: Sony Revisited, 82 B.U. L. REV. 975, 1000, 1023 (2002) (proposing that, as part of a fair use balancing test, a court must first "determine whether the copyright owner has shown '[by a preponderance of the evidence] that some meaningful likelihood of [actual or] future harm to the work's market value exists'"; second, whether the owner has "demonstrate [d], by a preponderance of the evidence, that the use at issue will reduce both her revenues and the output of creative works at the margins"; and third, to consider "whether, on balance, society would be better or worse off by allowing the use to continue" (quoting Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984)));
145. Eugene Volokh, Freedom of Speech and Intellectual Property: Some Thoughts After Eldred, 44 Liquormart, and Bartnicki, 40 HOUS. L. REV. 697, 719-22 (2003) (arguing that allocating the burden to the defendant violates the First Amendment).
146. See also Matthew J. Sag, Beyond Abstraction: The Law and Economics of Copyright Scope and Doctrinal Efficiency, 81 TUL. L. REV. 187, 239-45 (2006) (critiquing Lunney's proposed case-by-case cost-benefit analysis as impractical and speculative).
147. See Kenneth D. Crews, Fair Use of Unpublished Works: Burdens of Proof and the Integrity of Copyright, 31 ARIZ. ST. L.J. 1, 68 (1999).
148. See Matthew Africa, Comment, The Misuse of Licensing Evidence in Fair Use Analysis: New Technologies, New Markets, and the Courts, 88 CAL. L. REV. 1145, 1178 (2000).
149. David Lange & Jennifer Lange Anderson, Copyright, Fair Use, and Transformative Critical Appropriation 1 (working paper), available at http://www.law.duke.edu/pd/papers/langeand.pdf.
150. See supra Part IV.A.
151. Africa himself believes the change would probably have to be accomplished legislatively, however. Africa, supra note 114, at 1178.
152. See supra note 44.
153. See Gibson, supra note 1, at 948-49; see also Wendy J. Gordon, The "Why" of Markets: Fair Use and Circularity, 116 YALE L.J. POCKET PART 371, 372 (2007), http://yalelawjournal.org/images/pdfs/547.pdf (stating that a defendant should have "no fair use claim if market institutions are the proper locus for allocating the use, and if the particular market is working well," but that the fair use claim "should prevail (1) if the use is one that is of a general type not well allocated through markets, or (2) if the particular market is deeply flawed").
154. See, e.g., Nimmer, supra note 6, at 287 ("[T]he problem with the four [fair use] factors is they are malleable enough to be crafted to fit either point of view."); Molly Shaffer Van Houweling, Safe Harbors in Copyright 2 (working paper) (2006), available at http://www.law.berkeley.edu/institutes/bclt/ipsc/papers2/VanHouweling.pdf (describing fair use determinations as being "based on an ad hoc and open-ended analysis that is notoriously unpredictable").
155. See, e.g., Jeremy Bulow, The Gaming of Pharmaceutical Patents, in 4 INNOVATION POLICY AND THE ECONOMY 145, 162 (Adam B. Jaffe et al. eds., 2004) ("[B]asic capital market theory would say that if the litigation risk is nonsystematic and the firms' managers act as fiduciaries for well-diversified stockholders, then the firms should be risk-neutral regarding the litigation."); cf. Gibson, supra note 1, at 893-94 (stating that copyright owners also are likely to be risk averse, in part due to constraints imposed by errors and omissions insurers).
156. Gibson raises this possibility, using almost precisely the same example. See Gibson, supra note 1, at 937. Parchomovsky and Goldman also propose fair use minima along these lines. See Parchomovsky & Goldman, supra note 2, at 1511.
157. Mazzone recommends a rule of this nature. See Mazzone, supra note 90, at 1090-93.
158. 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), reprinted in 1976 U.S.C.C.A.N. 5659, 5681-88;
159. see also GUIDELINES FOR EDUCATIONAL USES OF MUSIC, H.R. REP. NO. 94-1476, at 70-71 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5684;
160. BRUCE A. LEHMAN, THE CONFERENCE ON FAIR USE: FINAL REPORT TO THE COMMISSIONER ON THE CONCLUSION OF THE CONFERENCE ON FAIR USE 14 (1998), available at http://www.uspto.gov/ web/offices/dcom/olia/confu/confurep.pdf;
161. EDUC. MULTIMEDIA FAIR USE GUIDELINES DEV. COMM., FAIR USE GUIDELINES FOR EDUCATIONAL MULTIMEDIA (1996), available at http://www.ccumc.org/system/files/MMFUGuides.pdf.
162. See Ann Bartow, Electrifying Copyright Norms and Making Cyberspace More Like a Book, 48 VILL. L. REV. 13, 33 n.69 (2003). A related recommendation might involve the adoption of industry-wide "best practices" that recognize the utility of a relatively broad fair use exception. See AUFDERHEIDE & JASZI, supra note 1, at 30 (proposing the adoption of "models of 'best practices' for the incorporation of preexisting copyrighted materials by documentary filmmakers, based on collective discussions by distinguished creators of the ways in which they actually do and reasonably could use such materials" and suggesting that "[t]he imprimatur of leading professional associations on such models would provide crucial legitimacy"). This approach might succeed in avoiding some of the problems I flag in the text above with respect to copyright guidelines.
163. See German Copyright Law, supra note 33, pt. 1, ch. 4, §. 24(1) ("An independent work created by free use of the work of another person may be published and exploited without the consent of the author of the used work."). "Free use" is said to be analogous to "transformative use" under U.S. law. J.A.L. STERLING, WORLD COPYRIGHT LAW § 10:23, at 449-50 & n.27 (2d ed. 2003).
164. But see Michael J. Madison, A Pattern-Oriented Approach to Fair Use, 45 WM. & MARY L. REV. 1525, 1666-67 (2004) (arguing that U.S. courts could improve the predictability of fair use decisions by recognizing recurring patterns in which uses are likely to be fair).
165. See Bartow, supra note 125, at 34-37; Kenneth D. Crews, The Law of Fair Use and the Illusion of Fair-Use Guidelines, 62 OHIO ST. L.J. 599, 602 (2001).
166. See Bartow, supra note 125, at 33 n.69; Crews, supra note 128, at 611-12. Parchomovsky and Goldman, on the other hand, argue that fair use minima need not become de facto maxima, if the minima are enacted into law; as they note, the guidelines mentioned in the text above lack the force of law. See Parchomovsky & Goldman, supra note 2, at 1489. They also argue that even relatively stringent minima - for example, a rule defining the taking of the lesser of three hundred words or fifteen percent of a literary work of more than one hundred words as per se fair use - would have substantial positive consequences in the real world. See id. If they are right, my conclusion in the text above that any positive effects of safe harbors would be "modest" may understate the effects of such reforms.
167. See Van Houweling, supra note 120, at 14.
168. See supra Part IV.A.
169. Dan L. Burk & Julie E. Cohen, Fair Use Infrastructure for Rights Management Systems, 15 HARV. J. L. & TECH. 41, 65-66 (2001).
170. Id.
171. NIC GARNETT, STANDING COMM. ON COPYRIGHT & RELATED RIGHTS, WORLD INTELLECTUAL PROP. ORG., AUTOMATED RIGHTS MANAGEMENT SYSTEMS AND COPYRIGHT LIMITATIONS AND EXCEPTIONS 73-76 (2006), available at http://www.wipo.int/edocs/mdocs/sccr/en/sccr_14/sccr_14_5.doc.
172. See Michael W. Carroll, Fixing Fair Use, 85 N.C. L. REV. 1087 (2007);
173. David Nimmer, A Modest Proposal to Streamline Fair Use Determinations, 24 CARDOZO ARTS & ENT. L.J. 11, 12-15 (2006).
174. Nimmer, supra note 135, at 12-15. One might debate whether this reform goes more to accuracy, or cost reduction, or predictability, or even some combination thereof.
175. See Carroll, supra note 135, at 1124-28.
176. Id.
177. See Burk & Cohen, supra note 132, at 59-60 (discussing the decrease of spontaneous uses).
178. But see Carroll, supra note 135, at 1141 (expressing doubt that appellate courts would unduly defer and viewing the appellate courts' expected independence from the Fair Use Board as a strength of his proposal).
179. See id. at 1138; see also Justin Hughes, Introduction to David Nimmer's Modest Proposal, 24 CARDOZO ARTS & ENT. L.J. 1, 7 (2006) (similar).
180. See Gibson, supra note 1, at 942.
181. See ROBERT NOZICK, PHILOSOPHICAL EXPLANATIONS ch. 2 (1981);
182. Thomas Nagel, What Is It Like to Be a Bat?, 83 PHIL. REV. 4 (1974).
183. See Yoo, Public Good Economics, supra note 1, 637-44.
184. Cf. Ronald H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1, 43 (1960) ("As Frank H. Knight has so often emphasized, problems of welfare economics must ultimately dissolve into a study of aesthetics and morals.").