An empirical study of U.S. Copyright fair use opinions, 1978-2005

University of Pennsylvania Law Review

Volumn 156, Issue 3, 2008, Pages 549-624

  Beebe, Barton ^a  

^a YESHIVA UNIVERSITY   (United States)

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EID: 41149177423     PISSN: 00419907     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (371)

1. Pub. L. No. 94-553, 90 Stat. 2541, 2546 (1976) (codified as amended at 17 U.S.C. § 107 (2000 & Supp. IV 2004)).
2. Id. (codified as amended at 17 U.S.C. § 106 (2000 & Supp. IV 2004)).
3. See JACQUES DERRIDA, OF GRAMMATOLOGY 141-64 (Gayatri Chakravorty Spivak trans. 1976) (describing a "dangerous supplement" as, among other things, an area of deconstructive ambiguity and ambivalence in a theoretical edifice that threatens always to undermine the foundations of that edifice).
4. Cf. R. Polk Wagner, The Perfect Storm: Intellectual Property and Public Values, 74 FORDHAM L. REV. 423, 431 (2005) (noting that the uncertainty surrounding the fair use doctrine "has the potential to erode the foundations of fair use-and with it much of the social benefit of the copyright law").
5. 17 U.S.C. § 107.
6. See, e.g., Robert S. Boynton, The Tyranny of Copyright?, N.Y. TIMES, Jan. 25, 2004, § 6 (Magazine), at 40;
7. see also Yochai Benkler, Free As the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 N.Y.U. L. REV. 354, 357-58 (1999) (noting that the "enclosure" that reuslts from strict copyright resrtictions conflicts with the purpose of the First Amendment, which "requires a robust public domain") ;
8. James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, 66 LAW & CONTEMP. PROBS., Winter-Spring 2003, 33, 37-40 (lamenting the emergence of a "second enclosure movement" that seeks to challenge the "baseline" rule that "intellectual property rights are the exception rather than the norm").
9. See, e.g., William W. Fisher III, Reconstructing the Fair Use Doctrine, 101 HARV. L. REV. 1659 (1988);
10. Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors, 82 COLUM. L. REV. 1600 (1982);
11. Justin Hughes, Fair Use Across Time, 50 UCLA L. REV. 775 (2003);
12. Michael J. Madison, A Pattern-Oriented Approach to Fair Use, 45 WM. & MARY L. REV. 1525 (2004).
13. See, e.g., Jessica Litman, The Sony Paradox, 55 CASE W. RES. L. REV. 917 (2005);
14. Frank Pasquale, Breaking the Vicious Circularity: Sony's Contribution to the Fair Use Doctrine, 55 CASE W. RES. L. REV. 777 (2005);
15. Pamela Samuelson, The Generativity of Sony v. Universal: The Intellectual Property Legacy of Justice Stevens, 74 FORDHAM L. REV. 1831 (2006);
16. Peter S. Menell & David Nimmer, Unwinding Sony (U.C. Berkeley Pub. Law & Legal Theory Research Paper Series, Paper No. 930728), available at http://ssrn.com/abstract=930728;
17. see also infra note 64 (discussing the annual ratio of law review articles addressing fair use to actual federal court cases doing the same during the period sampled).
18. See, e.g., PAUL GOLDSTEIN, COPYRIGHT'S HIGHWAY: FROM GUTENBERG TO THE CELESTIAL JUKEBOX (rev. ed. 2003);
19. WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF INTELLECTUAL PROPERTY LAW 115 (2003) (pointing out the particular deficiencies of each of the four statutory factors);
20. Michael W. Carroll, Fixing Fair Use, 85 N.C. L. REV. 1087, 1106 (2007) ("[L]eading courts and commentators generally acknowledge that the four-factor test as interpreted provides very little guidance for predicting whether a particular use will be deemed fair.");
21. Madison, supra note 7, at 1564 ("[T]he facial emptiness of the statutory language means that alone, it is almost entirely useless analytically, except to the extent that it structures the collection of evidence that a court might think relevant to its decision.");
22. id. at 1586-87 ("[A]cross a range of fair use cases, the Supreme Court's formal jurisprudence has encouraged the courts of appeals, and presumably the district courts following their lead, to abstract the fair use inquiry to the point of incoherence.");
23. Matthew Sag, God in the Machine: A New Structural Analysis of Copyright's Fair Use Doctrine, 11 MICH. TELECOMM. TECH. L. REV. 381, 434 (2005) (referring to section 107 as a "vague and open-ended standard").
24. But see William F. Patry & Shira Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 CARDOZO ARTS & ENT. L.J. 667, 667-68 (1993) ("The thorniness of fair use is not due to any failure on the part of the legislature or the judiciary. To the contrary, it is inherent in the common law nature of the doctrine as a multifaceted process by which courts can finely calibrate not only the equities between the parties in a given case, but also the fundamental public policies at stake in drawing the line between private property and free use.");
25. Abraham Drassinower, Authorship as Public Address: On the Specificity of Copyright Vis-à-Vis Patent and Trade-Mark (unpublished manuscript, on file with author).
26. Cf. Rochelle Cooper Dreyfuss, Games Economists Play, 53 VAND. L. REV. 1821, 1825 (2000) ("Phenomena that generate data, like collective rights organizations, are amply studied; amorphous doctrines, such as fair use, which have enormous legal significance but litde by way of hard facts, do not receive as much attention from pure economists." (footnotes omitted)).
27. See, e.g., THOMAS CARLYLE, ON HEROES, HERO-WORSHIP AND THE HEROIC IN HISTORY 29 (Carl Niemeyer ed., Univ. of Neb. Press 1966) (1897) ("The History of the world is but the Biography of great men.").
28. We currently have one study of a cross-sectional sample of fair use opinions. See David Nimmer, "Fairest of Them All" and Other Fairy Tales of Fair Use, 66 LAW & CONTEMP. PROBS., Winter-Spring 2003, at 263, 279-81 (concluding that in resolving fair use cases, courts first decide whether the use is fair or unfair and then align the four factors to best support that result). Nimmer studied sixty fair use opinions published in the Federal Supplement or the Federal Reports between the March 7, 1994, opinion date of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), and the February 6, 2002, opinion date of Kelly v. Arriba Soft Corp., 280 F.3d 934 (9th Cir. 2002). As Nimmer admits, his method was idiosyncratic. He read the facts stated in the opinions and then, based on those facts, decided for himself which party he thought each factor should favor. He then compared his own factor-specific findings to the overall finding of the court on the fair use question.
29. See Nimmer, supra, at 267 & n.28. Based on a data set assembled and provided to me by Matthew Sag, I conducted a logistic regression of the courts' determinations of the outcomes on Nimmer's determinations of the outcomes of the four factors. On this regression, the only significant factor outcome was the second, going to the nature of the plaintiffs work, and the coefficient was negative. Thanks to Matthew Sag for informing me of this curious result.
30. The method employed here is generally referred to as "content analysis." See Mark A. Hall & Ronald F. Wright, Systematic Content Analysis of Judicial Opinions 3 (Wake Forest Univ. Pub. Law & Legal Theory Research Paper Series, Working Paper No. 913336, 2006), available at http://ssrn.com/abstract=913336 (defining content analysis as an empirical method by which "a scholar collects a set of documents (for instance, judicial opinions on a particular subject), reads the documents systematically, records consistent features of each one, and then draws inferences about the use and meaning of those documents") ;
31. see also Fred Kort, Content Analysis of Judicial Opinions and Rules of Law, in JUDICIAL DECISION-MAKING 133 (Glendon Schubert, ed. 1963) (providing a quantitative formulation of rules of law as a content analysis method for the interpretation of judicial decision making);
32. Reed C. Lawlor, Fact Content Analysis of Judicial Opinions, 8 JURIMETRICS J. 107, 110 (1968) (using content analysis of fact patterns injudicial opinions to develop a method for predicting the outcome of future cases).
33. The metaphor of stampeding is adopted from Barton Beebe, An Empirical Study of the Multifactor Tests for Trademark Infringement, 94 CAL. L. REV. 1581, 1614-15 (2006). The hypothesis is that judges decide the outcome of a multifactor test based on a limited number of core factors, possibly only one. The judge then tends to ensure that most, if not all, of the remaining factors follow the lead of this dispositive factor. Alternatively, the hypothesis is that certain multifactor tests are by their own nature prone to stampeding, primarily because the factors are redundant. The idea of stampeding is based in part on the "coherence-based reasoning model" proposed by Dan Simon and others,
34. see Dan Simon, A Third View of the Black Box: Cognitive Coherence in Legal Decision Making, 71 U. CHI. L. REV. 511, 513 (2004) ("Coherence-based reasoning posits that the mind shuns cognitively complex and difficult decision tasks by reconstructing them into easy ones, yielding strong, confident conclusions."), and in part on the "fast and frugal" heuristics research of Gerd Gigerenzer and others,
35. see Gerd Gigerenzer & Daniel G. Goldstein, Reasoning the Fast and Frugal Way: Models of Bounded Rationality, 103 PSYCHOL. REV. 650, 666 (1996) (arguing that simple psychological mechanisms that operate under constraints of limited time and knowledge can produce as many correct inferences as more complex analyses).
36. Cf. Nimmer, supra note 12, at 281 n.62 (" Alternatively, as courts work their way through the four factors, at some point they decide what the ultimate conclusion should be-which, in turn, molds the way that they reach resolution as to which direction each factor points.").
37. Nimmer, supra note 12, at 281.
38. See infra Part IV.B and Table 9.
39. See infra Part IV.A.1 and Table 9.
40. See generally Stefanie A. Lindquist & Frank B. Cross, Empirically Testing Dworkin's Chain Novel Theory: Studying the Path of Precedent, 80 N.Y.U. L. REV. 1156, 1205-06 (2005) (studying the effect of precedent on judicial decisionmaking and finding, generally, that "[t]he growth of precedent in an area [of law] does not appear to restrict judicial discretion; if anything, the development of the law may increase such discretion").
41. Lloyd L. Weinreb, Fair's Fair: A Comment on the Fair Use Doctrine, 103 HARV. L. REV. 1137, 1151 (1990).
42. For a discussion of the process of collecting and coding the opinions that comprised the data set for this study, see the Appendix.
43. 17 U.S.C. § 106 (2000 & Supp. IV 2004).
44. Id. §§ 107-122.
45. See generally Joseph P. Liu, Regulatory Copyright, 83 N.C. L. REV. 87 (2004) (examining the "implications of the increasingly regulatory nature of U.S. copyright law").
46. The only limiting section shorter in word count is section 120, involving the scope of exclusive rights in architectural works. See 17 U.S.C. § 120 (2000 & Supp. IV 2004).
47. 17 U.S.C. § 107 (2000 & Supp. IV 2004).
48. Cf. Weinreb, supra note 19, at 1139 ("Congress adopted three considerably inconsistent ways of doing nothing: simple reference to fair use, specification of what is fair use by illustrative examples, and prescription of nonexclusive 'factors to be considered' in determining whether a particular use is fair. As Hercule Poirot observed about the murder on the Orient Express, the problem is not that there are too few clues but that there are too many." (footnotes omitted)).
49. Judge Posner was quite dismissive of the factors in Ty, Inc. v. Publications International, Ltd., 292 F.3d 512, 522 (7th Cir. 2002) (noting that the "statutory definition" of fair use, "though extensive [,] is not illuminating"). On remand, District Court Judge Zagel nevertheless explained to the defendant, who adopted Judge Posner's approach "[t]o its detriment," that "regardless of what PIL claims the Seventh Circuit did, statutory and case authority mandate that the four fair use factors must be considered and applied in every case, including this remand." Ty, Inc. v. Publ'ns Int'l., Ltd., 333 F. Supp. 2d 705, 715-16 (N.D. 111. 2004).
50. Act of Oct. 24, 1992, Pub. L. No. 102-492, 106 Stat. 3145;
51. see also Kenneth D. Crews, Fair Use of Unpublished Works: Burdens of Proof and the Integrity of Copyright, 31 ARIZ. ST. LJ. 1, 49-66 (1999) (discussing the legislative history of the 1992 amendment and its impact on the fair use case law).
52. See, e.g., WILLIAM F. PATRY, THE FAIR USE PRIVILEGE IN COPYRIGHT LAW 261-365 (2d ed. 1995).
53. For an account of the legislative history of the Copyright Act in general, see Jessica Litman, Copyright Legislation and Technological Change, 68 OR. L. REV. 275 (1989)
54. and Jessica D. Litman, Copyright, Compromise, and Legislative History, 72 CORNELL L. REV. 857 (1987).
55. See, e.g., Copyright Law Revision: Hearings on H.R 4347, H.R. 5680, H.R. 6831, and H.R. 6835 Before Subcomm. No. 3 of the H. Comm. on the Judiciary, 89th Cong. 1216 (1965) (statement of Association of American University Presses);
56. id. at 1714 (statement of the American Bar Association).
57. See, e.g., H. COMM. ON THE JUDICIARY, 88TH CONG., COPYRIGHT LAW REVISION PART 3, at 158 (Comm. Print 1964) [hereinafter COPYRIGHT LAW REVISION PART 31.
58. H.R. 4347, 89th Cong. § 107 (1966);
59. S. 1006, 89th Cong. § 107 (1967);
60. see also PATRY, supra note 29, at 277-96 (providing a history of the debates surrounding the bills).
61. PATRY, supra note 29, at 296-319.
62. See COPYRIGHT LAW REVISION PART 3, supra note 31, at 6.
63. See H.R. 11947, H.R. 12354, and S. 3008, 88th Cong., 2d Sess. (1964),
64. reprinted in H. COMM. ON THE JUDICIARY, 89TH CONG., COPYRIGHT LAW REVISION PART 5, at 1-32 (Comm. Print 1964) [hereinafter COPYRIGHT LAW REVISION PART 5].
65. See H.R. 4347 § 107.
66. PATRY, supra note 29, at 351.
67. See id. (noting that the House subcommittee chose to address multiple copying in section 107 even though it was already being addressed in privately drafted guidelines).
68. Of course, a more optimistic interpretation of these data is that the preamble of section 107, together with various privately drafted guidelines, sufficiently clarified the issue so that litigation over it was rarely necessary. For a discussion of the history of fair use and privately drafted fair use guidelines, see Kenneth D. Crews, The Law of Fair Use and the Illusion of Fair-Use Guidelines, 62 OHIO ST. L.J. 599 (2001).
69. 9 F. Cas. 342 (D. Mass. 1841) (No. 4901). For an overview of Folsom v. Marsh, see R. Anthony Reese, The Story of Folsom v. Marsh: Distinguishing Between Infringing and Legitimate Uses, in INTELLECTUAL PROPERTY STORIES 259 (Jane C. Ginsburg & Rochelle Cooper Dreyfuss eds., 2006).
70. A total of 44 federal cases cited to Folsom from 1841 through 1977. This citation count is based on a search for the string "Folsom v Marsh" in the Wesdaw "allfeds-old" database and the Lexis "Federal Courts Cases Before 1945, Combined" database for federal case law before 1945 (the temporal limit of both of these databases), and in the Westlaw "allfeds" database for federal case law after 1944. The Lexis pre-1945 database yielded 5 cases not found in the Westlaw pre-1945 database. For a rough scale by which to assess Folsom'& citation count from 1841 to 1977, consider that a Westlaw search of the federal case law from the same periods for cases including the terms "fair use" and "copyright" yielded 125 cases, of which only 15 cited to Folsom. Early-twentieth-century treatises also failed to emphasize Folsom.
71. See, e.g., RICHARD ROGERS BOWKER, COPYRIGHT: ITS HISTORY AND ITS LAW 252 (1912) (referencing Folsom once, for a proposition relating to piracy, in a fourteen-page discussion of fair use) ;
72. WILLIAM BRIGGS, THE LAW OF INTERNATIONAL COPYRIGHT (1906) (failing to refer to Folsom at all);
73. RICHARD C. DE WOLF, AN OUTLINE OF COPYRIGHT LAW 140-167 (1925) (discussing fair use but failing to reference Folsom).
74. Of the 306 opinions sampled for this study, 47 opinions (15.4%) cited to Folsom, with 26.1% of the appellate opinions doing so, and 42.9% of the Supreme Court opinions doing so. In 40 of these 47 opinions, the judge either quoted directly from Folsom, quoted indirectly from Folsom by noting that he was quoting from an opinion that was itself quoting from Folsom, or otherwise discussed the facts in Folsom. One of these 40 purported to quote directly from Folsom, though, pedantically speaking, it did so in error.
75. See SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1261 n.9 (11th Cir. 2001) ("In Folsom v. Marsh,... Justice Story created the concept of 'fair use.'"). Justice Story did not use the term "fair use" in Folsom. The term of art apparendy first appeared in reported federal case law in Lawrence v. Dana, 15 F. Cas. 26, 58, 61 (D. Mass. 1869) (No. 8136).
76. See COPYRIGHT LAW REVISION PART 3, supra note 31, at 6. In his earlier Tentative Draft Report, the Register of Copyrights phrased the factors slightly differently. For the exact phrasing,
77. see PATRY, supra note 29, at 264.
78. See H.R. 11947, H.R. 12354, and S. 3008, 88th Cong. (1964),
79. reprinted in COPYRIGHT LAW REVISION PART 5, supra note 35, at 5.
80. Patry & Perlmutter, supra note 9, at 678-79.
81. PATRY, supra note 29, at 351;
82. Patry & Perlmutter, supra note 9, at 678.
83. See, e.g., H.R. Rep. No. 94-1476, at 66 (1976), as reprinted in 1976 U.S.C.C.A.N. 5659, 5679 (noting that the amendment "is not intended to be interpreted as any sort of not-for-profit limitation on educational uses of copyrighted works," but is rather "an express recognition that, as under the present law, the commercial or nonprofit character of an activity, while not conclusive with respect to fair use, can and should be weighed along with other factors in fair use decisions").
84. See, e.g., Weissmann v. Freeman, 868 F.2d 1313, 1323 (2d Cir. 1989) ("Analysis begins not by elevating the statutory guides into inflexible rules, but with a review of the underlying equities.");
85. Fin. Info., Inc. v. Moody's Investors Serv., Inc., 751 F.2d 501, 508 (2d Cir. 1984) ("The four factors... are equitable considerations to be assessed and weighed by the court; they are not simply hurdles over which an accused infringer may leap to safety from liability. Rather than a sequence of four rigid tests, the fair use analysis consists of a 'sensitive balancing of interests.'"
86. (quoting Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 455 n.40 (1984))).
87. Chicago Bd. of Educ. v. Substance, Inc., 354 F.3d 624, 629 (7th Cir. 2003) (Posner, J.);
88. see also Patry & Perlmutter, supra note 9, at 685 ("Before fair use was incorporated in the statute, courts did not treat the factors as a checklist, with each factor reduced to a plus or minus. The mere listing of four factors in the 1976 Act, however, has led some courts improperly to take this approach.").
89. See, e.g., Schiffer Publ'g, Ltd. v. Chronicle Books, LLC, No. 03-4962, 2004 WL 2583817, at *12-13 (E.D. Pa. Nov. 12, 2004) ("In sum, Defendants' use of Plaintiffs' work was not a fair use. Because the first, third, and fourth fair use factors favor Plaintiffs, and because none of the factors strongly favor Defendants, this Court holds that Defendants have not met their burden of proving that their appropriation of Plaintiffs' works constitutes fair use.");
90. Batesville Servs., Inc. v. Funeral Depot, Inc., No. 02-01011, 2004 U.S. Dist. LEXIS 24336, at *22-26 (S.D. Ind. Nov. 10, 2004) ("The first factor thus weighs heavily against the fair use defense.... This [second] factor is essentially neutral on Funeral Depot's fair use defense.... This [third] factor weighs against the fair use defense.... This [fourth] factor tends to weigh in favor of the fair use defense....").
91. See, e.g., Kelly v. Arriba Soft Corp., 336 F.3d 811, 822 (9th Cir. 2003) ("Having considered the four fair use factors and found that two weigh in favor of Arriba, one is neutral, and one weighs slightly in favor of Kelly, we conclude that Arriba's use of Kelly's images as thumbnails in its search engine is a fair use.");
92. Narell v. Freeman, 872 F.2d 907, 915 (9th Cir. 1989) ("In sum, the first factor weighs strongly in Narell's favor and the second factor slightly favors Freeman. However, a reasonable juror could only conclude that the third and final factors strongly favor Freeman.");
93. Salinger v. Random House, Inc., 811 F.2d 90, 99-100 (2d Cir. 1987) ("On balance, the claim of fair use as to Salinger's unpublished letters fails. The second and third factors weigh heavily in Salinger's favor, and the fourth factor slightly so. Only the first factor favors Hamilton.");
94. Coll. Entrance Exam. Bd. v. Cuomo, 788 F. Supp. 134, 143 (N.D.N.Y. 1992) ("In conclusion, given the fact that factor one favors the State, factor two favors GMAC, and factors three and four favor neither party, the court holds that GMAC has not demonstrated a likelihood of success on the merits of its copyright infringement claim.").
95. 471 U.S. 539 (1985).
96. See id. at 549-69 (recounting the history of fair use and evaluating each factor in light of the purpose of the fair use defense).
97. Id. at 590-603 (Brennan.J., dissenting).
98. Id. at 604-05.
99. Cf. Litman, Copyright, Compromise, and Legislative History, supra note 29, at 861 n.37 (noting that in Sony and Harper & Row, "the Supreme Court adopted a test that rigidifies the statute's major flexibility principle").
100. 471 U.S. at 588 (Brennan, J., dissenting).
101. Of the 306 opinions, 6.9% failed to consider the first factor, 17.7% failed to consider the second factor, 13.4% failed to consider the third factor, and 8.8% failed to consider the fourth factor.
102. See, e.g., Gordon, supra note 7, at 1614 (proposing that courts consider whether "(1) market failure is present; (2) transfer of the use to defendant is socially desirable; and (3) an award of fair use would not cause substantial injury to the incentives of the plaintiff copyright owner");
103. Madison, supra note 7, at 1687 (calling upon judges to conduct a "pattern-oriented" analysis of the fair use issue);
104. see also Fisher, supra note 7, at 1678-86 (discussing the relevance of various subfactor concerns to the fair use determination);
105. Jennifer E. Rothman, 77¡e Questionable Use of Custom in Intellectual Property, 93 VA. L. REV. 1899 (2007) (discussing the relevance of industry "custom" to the fair use determination).
106. See Weinreb, supra note 19, at 1140 (urging courts to take into account factors such as customary practice in their fairness determinations).
107. See, e.g., Bond v. Blum, 317 F.3d 385, 394 (4th Cir. 2003) ("These factors are not meant to be exclusive, but rather illustrative, representing only general guidance about the sorts of copying that courts and Congress most commonly have found to be fair uses." (citations and internal quotations omitted));
108. Universal City Studios, Inc. v. Sony Corp. of Am., 480 F. Supp. 429, 448 (CD. CaI. 1979) ("The factors are illustrative, not definitive."), aff'd in part, rev'd in part, 659 F.2d 963 (9th Cir. 1981).
109. Cf. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 15-16 (1977) (criticizing the nominalist conception of law as a warehouse of rules discovered and applied mechanically by judges);
110. Roscoe Pound, Mechanical Jurisprudence, 8 COLUM. L. REV. 605, 605-07 (1908) (criticizing the conception of law as science insofar as it becomes an end in itself rather than a means to administer justice).
111. The Appendix discusses the "substantial use" standard used to filter the opinions. In short, the data set included all opinions from the period sampled that cited to the section 107 test and referenced at least two factors from the test.
112. There were typically far more law review articles than actual court opinions on fair use in each of the years sampled. A search of the Wesdaw "tp-all" database for the years 1990-2005, using the search string, ti ("fair use") & da([year]), shows that the ratio of law review articles in that database containing the phrase "fair use" in their titles to actual court opinions on fair use was about 2.4:1 during that period. For the years 2000-2005, the ratio was 3.3:1.
113. INTER-UNIVERSITY CONSORTIUM FOR POL. & SOC. RESEARCH, FEDERAL COURT CASES: INTEGRATED DATA BASE, 2003 (ICPSR Study No. 4026, 2005) ;
114. INTER-UNIVERSITY CONSORTIUM FOR POL. & SOC. RESEARCH, FEDERAL COURT CASES: INTEGRATED DATA BASE, 2002 (ICPSR Study No. 4059, 2005);
115. INTER-UNRVERSITY CONSORTIUM FOR POL. & SOC. RESEARCH, FEDERAL COURT CASES: INTEGRATED DATA BASE, 2001 (ICPSR Study No. 3415, 2005);
116. INTER-UNIVERSITY CONSORTIUM FOR POL. & SOC. RESEARCH, FEDERAL COURT CASES: INTEGRATED DATABASE, 1970-2000 (ICPSR Study No. 8429, 2005). According to these databases, for the years 1978 up to and including 2003, the mean number of filings per year under the Nature of Suit category "820 Copyright" was 1990.67 (standard deviation = 6.83).
117. Even while fair use concerns may pervade the public sphere (and legalacademic commentary on it), many fair use controversies may never take the form of a filed complaint, as potential fair uses are "chilled" by the mere threat of litigation. Empirical work supports this explanation. See MARJORIE HEINS & TRICIA BECKLES, BRENNAN CTR. FOR JUSTICE, WILL FAIR USE SURVIVE? FREE EXPRESSION IN THE AGE OF COPYRIGHT CONTROL 8, 35-36 (2005) (assessing the speech-suppressing effects of cease-and-desist letters). Indeed, the very unpredictability of fair use outcomes may lead defendants to settle, whether before or after litigation has been joined, particularly when the defendant need only make narrow alterations in its speech in order to avert the risk of broad injunctive relief and the imposition of damages. For a theoretical account of the cost-benefit analysis underlying the pleading of a fair use defense,
118. see Thomas F. Cotter, Fair Use and Copyright Overenforcement, 93 IOWA L. REV. (forthcoming 2008), available at http://ssrn.com/abstract=951839.
119. See generally Ahmed E. Taha, Data and Selection Bias: A Case Study, 75 UMKC L. REV. 171 (2006) (discussing the effects of selection bias on the results of empirical studies of whether judges' political orientations affect litigation outcomes);
120. David A. Hoffman, Alan J. Izenman & Jeffrey R. Lidicker, Docketology, District Courts, and Doctrine, 85 WASH. U. L. REV. (forthcoming 2008), available at http://ssrn.com/abstract= 982130 ("Many authors have drawn exceedingly strong normative claims based on datasets that docketology reveals to be substantially biased.").
121. SeeTelerate Sys., Inc. v. Caro, 689 F. Supp. 221, 228-31 (S.D.N.Y. 1988) (denying the fair use defense of a subscriber to a computerized financial information service who copied the provider's database and sold the information as part of its software package).
122. See Playboy Enters., Inc. v. Frena, 839 F. Supp. 1552, 1557-59 (M.D. FIa. 1993) (holding that use of copyrighted photographs on an Internet bulletin board was not a protected fair use).
123. 464 U.S. 417 (1984).
124. 471 U.S. 539(1985).
125. 495 U.S. 207(1990).
126. 510 U.S. 569(1994).
127. See Harper & Row, 471 U.S. at 579-605 (Brennan, J., dissenting);
128. Sony, 464 U.S. at 457-500 (Blackmun, J., dissenting).
129. See Campbell, 510 U.S at 596-600 (Kennedy, J., concurring).
130. I use the term "sample" because, though this project sought to study the entire population of federal opinions that applied the four-factor test from 1978 through 2005, I cannot be sure that I collected all such opinions.
131. There was no significant variation over time in the distribution of opinions by venue or in the degree to which opinions from courts of the Second and Ninth Circuit were cited by courts outside of those circuits. It is notable, however, that 35 of the 38 opinions (or 92%) sampled from the district courts of the Ninth Circuit dated from after 1990. This does not, however, appear to reflect the rise of computer software and Internet fair use case law, as only 6 of these 35 opinions involved computer software or Internet facts.
132. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (holding that cases decided by the Fifth Circuit prior to October 1, 1981 are the law of the Eleventh Circuit).
133. See infra note 142 and Table 9.
134. See, e.g., Castle Rock Entm't, Inc., v. Carol Publ'g Group, Inc., 150 F.3d 132, 137 (2d. Cir. 1998) (noting that although "[f]air use is a mixed question of law and fact," the Second Circuit has often resolved fair use issues at the summary judgment stage, where there are no genuine issues of material fact (alteration in original)).
135. Schiffer Publ'g, Ltd. v. Chronicle Books, LLC, No. 03-4962, 2004 WL 2583817 (E.D. Pa. Nov. 12, 2004).
136. For examples, see the articles collected in the Journal of Empirical Legal Studies's issue dedicated to the topic, 1J. EMPIRICAL LEGAL STUD. 459-984 (2004).
137. 510 U.S. 569 (1994).
138. Acuff-Rose Music, Inc. v. Campbell, 754 F. Supp. 1150, 1158-59 (M.D. Tenn. 1991).
139. Acuff-Rose Music, Inc. v. Campbell, 972 F.2d 1429, 1436-37 (6th Cir. 1992).
140. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 583-84 (1994).
141. Id. at 589.
142. See, e.g., Nat'l Rifle Ass'n of Am. v. Handgun Control Fed'n, 15 F.3d 559, 560 (6th Cir. 1994);
143. Twin Peaks Prods, v. Publ'ns Int'l, Ltd., 996 F.2d 1366, 1370-71 (2d Cir. 1993);
144. McGowan v. Cross, No. 92-1480, 1993 U.S. App. LEXIS 9134, at *1 (4th Cir. Apr. 22, 1993);
145. Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1079 (2d Cir. 1992);
146. Wright v. Warner Books, Inc., 953 F.2d 731, 733-34 (2d Cir. 1991);
147. BellSouth Adver. & Publ'g Corp. v. Donnelley Info. Publ'g, Inc., 933 F.2d 952, 955 (11th Cir. 1991), rev'd, 999 F.2d 1436 (11th Cir. 1993);
148. Cable/Home Commc'n Corp. v. Network Prods., Inc., 902 F.2d 829, 834 (11th Cir. 1990).
149. Here, I broadly define the print medium as a medium consisting of two-dimensional textual or graphic works on paper, canvas, or a similar substrate, but not on a computer screen; the definition also excludes computer software code. Sixty-four percent of the opinions, and 64% of the district court opinions specifically, addressed facts in which at least one party was engaged in the print medium.
150. Forty-five percent of all opinions, and 43% of district court opinions, addressed facts in which at least one party was engaged in nonvirtual text.
151. See generally Neil Weinstock Netanel, Locating Copyright Within the First Amendment Skein, 54 STAN. L. REV. 1 (2001) (arguing in favor of a more robust application of First Amendment doctrine to copyright infringement claims);
152. Mark A. Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 DUKE L.J. 147 (1998) (arguing on First Amendment grounds mat preliminary injunctions in certain copyright cases are unconstitutional);
153. Rebecca Tushnet, Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 YALE L.J. 535 (2004) (arguing that a narrow conception of permissible fair use is a threat to First Amendment freedoms).
154. Here, a literal approach to "content analysis" of the case law does not serve us particularly well, or at least does not produce interesting data. Of the 69 opinions that referenced the First Amendment, 40.6% found in favor of the defendant, as opposed to the 237 opinions that did not reference the First Amendment, of which 42.2% found in favor of the defendant. Nor was it possible to conduct a reliable word count analysis of courts' discussion of the First Amendment, as discussions of fair use and the First Amendment tended to be quite discursive in nature. Here, then, a qualitative, leading cases approach seems to be the only workable method of analysis currendy available to us.
155. Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105, 1106-07 (1990) (footnotes omitted).
156. Weinreb, supra note 19, at 1137.
157. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 571-72 (1994), rev'g 972 F.2d 1429 (6th Cir. 1992);
158. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 542 (1985), rev'g 723 F.2d 195 (2d Cir. 1983);
159. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 420-21 (1984), rev'g 659 F.2d 963 (9th Cir. 1981);
160. see also Paul Goldstein, Fair Use in a Changing World, 50 J. COPYRIGHT SOC'Y U.S.A. 133, 134 (2003) (discussing the "indeterminacy" of fair use judgments).
161. Sony, 464 U.S. at 418.
162. Harper & Row, 471 U.S. at 541.
163. Two cases produced dissents from en banc hearings. See Princeton Univ. Press v. Michigan Document Servs., Inc., 99 F.3d 1381, 1393-94 (6th Cir. 1996) (Boyce, C.J., dissenting);
164. id. at 1394-97 (Merritt, J., dissenting);
165. id. at 1397-1412 (Ryan, J., dissenting); New Era Publ'ns Int'l, APS v. Henry Holt, Co., 884 F.2d 659, 662-64 (2d Cir. 1989) (Newman,J., dissenting).
166. Kevin M. Scott, Understanding Judicial Hierarchy: Reversals and the Behavior-of Intermediate Appellate Judges, 40 LAW & SOC'Y REV. 163, 177 tbl.1 (2006);
167. see also Burton Atkins, Interventions and Power in Judicial Hierarchies: Appellate Courts in England and the United States, 24 LAW & SOC'Y REV. 71, 83-92 (1990) (comparing reversal rates in U.S. appellate courts to those in English appellate courts).
168. DONALD R. SONGER ET AL., CONTINUITY AND CHANGE ON THE UNITED STATES COURTS OF APPEALS 105 tbl.5.1 (2000);
169. see also Sean Farhang & Gregory Wawro, Institutional Dynamics on the U.S. Court of Appeals: Minority Representation Under Panel Decision Making, 20 J.L. ECON. & ORG. 299, 306 (2004) ("Empirically, federal appellate panels are overwhelmingly unanimous, witfi dissent rates aggregated across all circuits averaging approximately 6% to 8%, varying somewhat with respect to issue area." (citations omitted)).
170. Christian A. Chu, Empirical Analysis of the Federal Circuit's Claim Construction Trends, 16 BERKELEY TECH. L.J. 1075, 1098 (2001);
171. see also Stephen P. Swinton & Adam A. Weiland, Patent Injunction Reform and the Overlooked Problem of False Positives,' 70 BNA PAT. TRADEMARK & COPYRIGHT J. 337, 338 (2005) ("Depending on the analysis employed and period examined, reversal rates for trial court judgments in patent infringement cases range from 30 to more than 60 percent.").
172. See Theodore Eisenberg, Appeal Rates and Outcomes in Tried and Nontried Cases: Further Exploration of Anti-Plaintiff Appellate Outcomes, 1 J. EMPIRICAL LEGAL STUD. 659, 664 & tbl.1 (2004) (noting a 10.9% appeal rate for all district court cases and a 21% appeal rate for all district court cases with a judgment for plaintiff or defendant from 1987 to 1996).
173. Of the 18 district court opinions that were reversed, 9 found in favor of the plaintiff and 9 found in favor of the defendant.
174. Beebe, supra note 14, at 1596-98 & tbl.2 (2006).
175. George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. LEGAL STUD. 1, 4-6, 17-18 (1984).
176. See generally Theodore Eisenberg, Testing the Selection Effect: A New Theoretical Framework with Empirical Tests, 19 J. LEGAL STUD. 337 (1990) (testing the fifty-percent hypothesis and rejecting it as a description of all civil litigation);
177. Daniel Kessler et al., Explaining Deviations from the Fifty-Percent Rule: A Multimodal Approach to the Selection of Cases for Litigation, 25 J. LEGAL STUD. 233 (1996) (noting deviations from the fifty-percent hypodiesis as a result of cases that do not conform to the assumptions of Priest and Klein's model).
178. Priest & Klein, supra note 105, at 24-29.
179. William M. Landes, An Empirical Analysis of Intellectual Property Litigation: Some Preliminary Results, 41 HOUS. L. REV. 749, 772 (2004).
180. Id.
181. Id. at 774 tbl.5. The Federal Judicial Center data are highly suspect.
182. See generally Beebe, supra note 14, at 1652-54 (noting various problems with the reliability of Administrative Office data) ;
183. Theodore Eisenberg & Margo Schlanger, The Reliability of the Administrative Office of the U.S. Courts Database: An Initial Empirical Analysis, 78 NOTRE DAME L. REV. 1455 (2003) (same).
184. Cf. Jane C. Ginsburg, Authors and Users in Copyright, 45 J. COPYRIGHT SOC'Y U.S.A. 1, 1 (1997) ("It has become fashionable, among some thinkers and activists in copyright and related fields, to disparage or to deplore copyright protection.").
185. See generally Jane C. Ginsburg, How Copyright Got a Bad Name for Itself, 26 COLUM. J.L. & ARTS 61 (2002) (discussing overreaching by copyright owners, but defending certain new media copyright reforms).
186. See generally 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_rightsreport.pdf (documenting the effect of a rights acquisition "thicket" on filmmakers' creative experiences);
187. LAWRENCE LESSIG, FREE CULTURE: HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL CREATPVITY (2005), available at http://www.freeculture.cc/freeculture.pdf (arguing that media companies use copyright law to stifle culture and creativity).
188. See generally Chilling Effects Clearinghouse, http://www. chillingeffects.org (last visited January 20, 2008) (providing background material and legal explanations for people who receive cease-and-desist letters claiming intellectual property violations).
189. See id. (providing a database of cease-and-desist letters sent by intellectual property holders to web publishers).
190. On the first factor, see Hofheinz v. Discovery Communications, Inc., No. 00-3802, 2001 WL 1111970, at *5 (S.D.N.Y. Sept. 20, 2001) ("[T] his first and foremost factor strongly favors defendant."), On Davis v. Gap, Inc., 246 F.3d 152, 174 (2d Cir. 2001) (Levai, J.) (referring to the first factor as "[t]he heart of the fair use inquiry"); Kelly v. Arriba Soft Corp., 77 F. Supp. 2d 1116, 1121 (C.D. Cal. 1999) ("The first factor of the fair use test is the most important in this case."),
191. rev'd in part, 336 F.3d 811 (9th Cir. 2003),
192. and Levai, supra note 93, at 1116 (stating that "Factor One is the soul of fair use"). On the second factor,
193. see Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 553 (1985) (referring to the second factor as "highly relevant to whether a given use is fair"),
194. and Cable/Home Commc'n Corp. v. Network Prods., Inc., 902 F.2d 829, 844 (11th Cir. 1990) ("This factor is 'highly relevant to whether a given use is fair.'"
195. (quoting Harper & Row, 471 U.S. at 553)).
196. But see Dow Jones & Co. v. Bd. of Trade, 546 F. Supp. 113, 120 (S.D.N.Y. 1982) ("The nature of the copyrighted work seems to be the least important and most unclear of the four factors enumerated in § 107.");
197. Carroll, supra note 9, at 18 (arguing that factor two "tends to do litde work in swaying the outcome" of the test);
198. Sag, supra note 9, at 390 ("The nature of the copyrighted work, while fairly objective, nonetheless remains unhelpful in assessing whether an activity is protected by fair use or not because it is overwhelmed by the other factors."). On the third factor, see Compaq Computer Corp. v. Procom Tech., Inc., 908 F. Supp. 1409, 1421 (S.D. Tex. 1995) ("The third factor ... is generally considered the least important factor of the fair use analysis."
199. (citing Sony Corp v. Universal City Studios, 464 U.S. 417, 449-50 (1984)).
200. See, e.g., Nimmer, supra note 12, at 267 n.25 ("My own opinion is that the fourth factor is the most important.").
201. Harper & Row, 471 U.S. at 566.
202. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994) ("All [factors] are to be explored, and the results weighed together, in light of the purposes of copyright.").
203. Fisher, supra note 7, at 1672-73;
204. see also Jeremy Kudon, Form Over Function: Expanding the Transformativeness Use Test for Fair Use, 80 B.U. L. REV. 579, 605 (2000) ("Essentially, the court incorporated the fourth factor's analysis into the first factor's test").
205. See, e.g., NXIVM Corp. v. Ross Inst., 364 F.3d 471, 485 (2d Cir. 2004) ("As Campbell pointed out, these inquiries, specified in the first and fourth listed factors of § 107, are correlated: the greater the transformative purpose of the secondary use, the less potential purchasers will see it as an alternative means of acquiring the original.").
206. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984) ("If the intended use is for commercial gain, [die] likelihood [of significant market harm] may be presumed.").
207. Campbell, 510 U.S. at 591.
208. See supra note 115 (discussing the comparative importance of each factor).
209. But see Leval, supra note 93, at 1123 ("[The third factor] plays a role in consideration of justification under the first factor (the purpose and character of the secondary use); and it can assist in the assessment of the likely impact on the market for the copyrighted work under the fourth factor (the effect on the market).").
210. Note that the sum of the absolute values of the two correlation coefficients shown for each factor does not equal zero because the court could also have found the factor to be neutral, not relevant, or a fact issue, or the court's finding was unclear. For this correlation analysis, each factor outcome is represented with two binary variables: favors a finding of fair use (1 = yes, 0 = no) and disfavors a finding of fair use (1 = yes, 0 = no). Thus, if the first variable is coded as one, then the second variable will be coded as zero, and vice versa. But if the court found the factor to be neutral, irrelevant, or not argued, then both variables were coded as zero.
211. There was no significant variation over time in the strength of the correlations.
212. See Religious Tech. Ctr. v. Netcom On-Line Commc'n Servs., Inc., 923 F. Supp. 1231, 1242-50 (N.D. Cal. 1995) (finding no fair use where factors two and three disfavored fair use while factors one and four favored fair use).
213. See discussion infra Part IV.A.1 (discussing Justice Stevens's creation of this commercial use presumption).
214. See Leval, supra note 93, at 1111 ("I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative.").
215. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578-79 (1994) (citing to Judge Leval's explanation of why fair use factor one hinges on transformativeness).
216. See Beebe, supra note 14, at 1615-17 ("[Coherence- based reasoning] hypothesizes that the 'decision-making process progresses bi-directionally: premises and facts both determine conclusions and are affected by them in return.'" (quoting Simon, supra note 14, at 511)).
217. Nimmer, supra note 12, at 281 (footnote ommited).
218. Id. at 280.
219. See Universal City Studios, Inc. v. Sony Corp. of Am., 480 F. Supp. 429, 450-56 (CD. Cal. 1979) (holding that home recording and playback of television programs "is noncommercial and does not reduce the market for plaintiffs' works"), rev'd, 659 F.2d 963 (9th Cir. 1981).
220. See Universal City Studios, Inc. v. Sony Corp. of Am., 659 F.2d 963, 972-74 (9th Cir. 1981) ("It is our conviction that the fair use doctrine does not sanction home videorecording."), rev'd sub nom. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984).
221. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 454-55 (1984) ("When [the fair use] factors are all weighed in the 'equitable rule of reason' balance, we must conclude that this record amply supports the District Court's conclusion that home time-shifting is fair use.").
222. See id. at 486 (Blackmun, J., dissenting) ("[T]ime-shifting cannot be deemed a fair use.").
223. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560-69 (1985) (finding that all four factors disfavored fair use over the dissent's objection that all four factors favored fair use), rev'g-723 F.2d 195, 207-08, 214-16 (2d Cir. 1983) (finding that all four factors favored fair use, with the dissent finding that at least two factors disfavored fair use), rev'g-557 F. Supp. 1067, 1072 (S.D.N.Y. 1983) (finding that all four factors disfavored fair use) ;
224. see also Harper & Row, 471 U.S. at 590-605 (Brennan & Meskill, JJ., dissenting).
225. A histogram like that in Figure 4, but indicating the mean of the absolute value of the opinions' stampede scores, rather than their fair use win rate, would show a flat stampede score line running across the bins.
226. 4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 13.05, at 13-206 (2007).
227. As one plausible explanation for this finding, the subfactor doctrine under each of the four factors may play a role in limiting courts' ability to stampede the factor outcomes. It is well recognized that the statutory language of the section 107 factors is ambiguous. See supra note 11. This might facilitate stampeding.
228. See Dan Simon, A Psychological Model of Judicial Decision Making, 30 RUTGERS L.J. 1, 101 (1998) ("Ambiguous propositions are malleable and thus especially susceptible to restructuring.");
229. id. at 101 n.387 (citing multiple empirical studies showing the malleability of ambiguous propositions). However, the subfactor doctrine is arguably far more specific and less open to manipulation, and as Part IV, infra, shows, certain subfactor doctrines significantly influence the outcomes of the factors and the overall test.
230. On the problem of the "circularity of facts" in judicial opinions, see Hall & Wright, supranote 13, at 18-21.
231. Table 9 suggests that, controlling for all other variables listed in the table, defendants had a significantiy better chance of prevailing in their fair use defense in a district or circuit court of the Second Circuit than in the courts of any of the other circuits.
232. See infra text accompanying notes 158-164.
233. Cf. Johan Deprez, Comment, Risk, Uncertainty, and Nonergodicity in the Determination of Investment-Backed Expectations: A Post Keynesian Alternative to Posnerian Doctrine in the Analysis of Regulatory Takings, 34 LOY. L.A. L. REV. 1221, 1223-24 (2001) (applying economic theories of ergodicity and nonergodicity to regulatory takings doctrine).
234. See generally Oona A. Hathaway, Path Dependence in the Law: The Course and Pattern of Legal Change in a Common Law System, 86 IOWA L. REV. 601 (2001) (employing path dependence theory to assess the evolution of the common law).
235. See, e.g., Hathaway, supra note 144, at 629 ("[T] he increasing returns nature of the common law system has three predictable consequences. The first is nonergodicity - small early events have a large impact on the eventual outcome. Because judges cannot fully anticipate the ways in which public and private actors will react to their decisions, they have difficulty determining the likely effect of their decisions over time. For this reason, decisions may have large, unanticipated, and unintended effects. For example, a single sentence in an early case may take on increasing significance over time.").
236. See generally Martin Shapiro, Toward a Theory of Stare Decisis, 1 J. LEGAL STUD. 125, 126 (1972). Shapiro's work deserves far more attention than it has received. Shapiro differentiates between syntactic and cybernetic feedback as follows: It is important to distinguish syntactic from cybernetic feedback. The former involves transmission back concerning error in the sense of incorrect transmission or receipt of information between sender and receiver within the system; the latter involves transmission concerning error in the sense of incorrect adjustment by the system to the outside world. Thus high levels of syntactic feedback indicate trouble in the transmission facilities of the system, rather than the sensitivity and learning that are typically imputed where high levels of cybernetic feedback are present.
237. Id.
238. On accumulating precedent, see generally Stefanie A. Lindquist & Frank B. Cross, Empirically Testing Dworkin's Chain Novel Theory: Studying the Path of Precedent, 80 N.Y.U. L. REV. 1156 (2005).
239. See Shapiro, supranote 146, at 133-34. Shapiro explains: Following the rules of stare decisis, requests for legal changes, which are actually inspired by the failure of law to adjust correctly to the environment, and are thus cybernetic feedback, are put in the form of syntactic feedback, statements that some judge or lawyer has not correcdy received the real message diat was transmitted by the previous cases (their "true principles"). In this way much cybernetic feedback information can be squeezed into a communications system that demands very high levels of redundancy, and it can be squeezed in without interfering with that sense of mutual support necessary to the coordination of nonhierarchical organizations.
240. Id.
241. 17 U.S.C. § 107(1) (2000 & Supp. IV 2004).
242. See, e.g., Kudon, supra note 119;
243. Laura G. Lape, Transforming Fair Use: The Productive Use Factor in Fair Use Doctrine, 58 ALB. L. REV. 677 (1995);
244. Diane Leenheer Zimmerman, The More Things Change, the Less They Seem "Transformed": Some Reflections on Fair Use, 46J. COPYRIGHT SOCYU.S.A. 251 (1998).
245. See Zimmerman, supra note 150, at 252-55.
246. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584 (1994) (alteration in original)
247. (quoting 3 BOSWELL'S LIFE OF JOHNSON 22 (George Birkbeck Hill ed. 1934)).
248. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 423 (1984) (defining "time-shifting" as "the practice of recording a program to view it once at a later time, and thereafter erasing it").
249. See, e.g., James Boyle, Intellectual Property Policy Online: A Young Person's Guide, 10 HARV. J.L. & TECH. 47, 99 (1996);
250. Stacey L. Dogan, Comment, Sony, Fair Use, and File Sharing, 55 CASE W. RES. L. REV. 971, 973 (2005).
251. Sony, 464 U.S. at 448-49 (footnote omitted).
252. Id. at 451.
253. See PATRY, supra note 29, at 351-53.
254. Harper Sc Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562 (1985).
255. Id. (alteration omitted)
256. (quoting Sony, 464 U.S. at 451).
257. See Shapiro, supra note 146, at 127 ("[L]egal discourse organized by the rules of stare decisis emphasizes, and itself insists that its success rests upon, high levels of redundancy . . . .").
258. Cf. id. at 133 ("If the system employs high levels of syntactic redundancy, it does not have the 'space' to transmit much cybernetic feedback information to its receiving parts.").
259. Stewart v. Abend, 495 U.S. 207, 237 (1990).
260. See Harper & Row, 471 U.S. at 566-69 (applying factor four, effect on the market, without mentioning commerciality);
261. Stewart, 495 U.S. at 238 (upholding the circuit court's conclusion that release of a film would affect the market for a short story without discussion of commerciality).
262. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 585 (1994)
263. (quoting Harper & Row, 471 U.S. at 562).
264. Pierre N. Leval, Campbell v. Acuff-Rose: Justice Souter's Rescue of Fair Use, 13 CARDOZO ARTS & ENT. L.J. 19, 19 (1994).
265. Id. at 20-21.
266. Id. at 22.
267. See, e.g., Itar-Tass Russian News Agency v. Russian Kurier, Inc., 886 F. Supp. 1120, 1130 (S.D.N.Y. 1995) (finding that the reprinting of a competitor's newspaper articles was not fair use). Of these 12 opinions, none found that the defendant's use was transformative. Specifically, 6 explicitly found that the defendant's use was not transformative and 6 did not address the issue of transformativeness.
268. Thirty-five of the 162 post-Campbell opinions sampled explicitly recognized under factor one that Campbell had abrogated the commercial use presumption under that factor.
269. On the tenacity of memes, see J.M. BALKIN, CULTURAL SOFTWARE: A THEORY OF IDEOLOGY 74-90 (1998).
270. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 585 (1994)
271. (quoting Harper & Row, Publishers, Inc., v. Nation Enters., 417 U.S. 539, 562 (1985)).
272. Leval, supra note 93, at 1111.
273. Id.
274. Id.
275. Id.
276. Campbell, 510 U.S. at 578-79
277. (citing Leval, supra note 93, at 1111) (asserting that the goal of copyright is "furthered by the creation of transformative works").
278. Leval, supra note 93, at 1111.
279. On Davis v. Gap, Inc., 246 F.3d 152, 174 (2d Cir. 2001) (Leval, J.)
280. (citing Campbell, 510 U.S. at 579).
281. Hofheinz v. Discovery Commc'ns, Inc., No. 00-3802, 2001 WL 1111970, at *3 (S.D.N.Y. Sept. 20, 2001)
282. (citing On Davis, 246 F.3d at 174-76).
283. Compare this proposition with NIMMER, supra note 139, at § 13.05[A][1] (footnote omitted), highlighting the importance of transformativeness: Those Second Circuit cases appear to label a use 'not transformative' as a shorthand for 'not fair,' and correlatively 'transformative' for 'fair.' Such a strategy empties the term of meaning - for the 'transformative' moniker to guide, rather than follow, the fair use analysis, it must amount to more than a conclusory label.
284. Also compare to Sag, supra note 9, at 388 (footnote omitted), noting the importance of transformativeness: The dominance of the transformativeness test makes the actual statutory language regarding noncommercial and educational uses largely irrelevant. Also, 'transformativeness' is clearly a meta-factor: the extent to which a use transforms the work cannot be determined without reference to the other factors, such as the nature of the original work, the quantitative and qualitative similarity between the works and the effect of the use on the value of the original work.
285. See, e.g., Universal City Studios, Inc. v. Sony Corp. of Am., 659 F.2d 963, 970 (9th Cir. 1981) ("As the first sentence of § 107 indicates, fair use has traditionally involved what might be termed the 'productive use' of copyrighted material."), rev'd, 464 U.S. 417(1984).
286. See SunTrust Bank v. Houghton Mifflin Co., 136 F. Supp. 2d 1357, 1378-85 (N.D. Ga. 2001) (finding no fair use and granting preliminary injunction where a parody's commerciality and other characteristics outweighed its transformativeness), vacated, 252 F.3d 1165 (11th Cir. 2001) (per curiam) and 268 F.3d 1257 (11th Cir. 2001). The one unreversed outlier was Castle Rock Entertainment v. Carol Publishing Group, Inc., 955 F. Supp. 260 (S.D.N.Y. 1997), aff'd, 150 F.3d 132 (2d Cir. 1998). For further discussion of these cases,
287. see Julie E. Cohen, The Place of the User in Copyright Law, 74 FORDHAM L. REV. 347, 363-64 & nn.54-55 (2005) (discussing SunTrust Bank and Castle Rock).
288. See, e.g., Leibovitz v. Paramount Pictures Corp., 948 F. Supp. 1214, 1223 (S.D.N.Y. 1996) ("I find that the purposes of copyright are best served by a finding that the highly transformative character of the Nielsen ad trumps its admittedly commercial purpose and that the first fair use factor therefore weighs in favor of the defendant, albeit perhaps by only a slight margin."); Am. Geophysical Union v. Texaco Inc., 802 F. Supp. 1, 12-13 (S.D.N.Y. 1992) ("Thus courts have repeatedly found in favor of transformative secondary uses on the first factor, notwithstanding the presence of profit motivation. Thus, although courts ritualistically proclaim, almost as a mantra, that every commercial use is 'presumptively' unfair, that presumption is easily overcome by a transformative, nonsuperseding use." (citations omitted)), order amended and superseded, 60 F.3d 913 (2d Cir. 1994).
289. See supra note 182.
290. See, e.g., Núñez v. Caribbean Int'l News Corp., 235 F.3d 18, 24 (1st Cir. 2000) (stating, in a discussion of the third factor, that "[i]n this case, El Vocero admittedly copied the entire picture; however, to copy any less than that would have made the picture useless to the story," and that "[a]s a result, like the district court, we count this factor as of little consequence to our analysis");
291. Blanch v. Koons, 396 F. Supp. 2d 476, 481-82 (S.D.N.Y. 2005) ("The photograph as a whole is sufficiently creative and original to receive copyright protection, and it is copyrighted. Yet its general publication throughout the United States favors fair use .... Blanch has no right to the appearance of the Gucci sandals (perhaps the most striking element of the photograph), and Koons appropriated nothing else of the photograph except the crossed legs. Viewed alone (disregarding the sandals) they are banal rather than creative. The second factor favors the defendants." (citations omitted));
292. Newport-Mesa Unified Sch. Dist. v. Cal. Dep't of Educ., 371 F. Supp. 2d 1170, 1177-78 (C.D. Cal. 2005) ("Under the second fair use factor, the nature of the copyrighted work is creative rather than informational. ' [Development of the test questions as well as their compilation in a particular test form is a creative, imaginative, and original process.' This ordinarily would weigh against finding fair use. But, with the addition of a student's answers, the questions and answers are informational in nature, which weighs in favor of fair use."
293. (quoting Coll. Entrance Examination Bd. v. Pataki, 889 F. Supp. 554, 569 (N.D.N.Y. 1995)) (alteration in original) (citations marks omitted));
294. Penelope v. Brown, 792 F. Supp. 132, 138 n.7 (D. Mass. 1992) (stating under the second factor that "Penelope's work is scholarly and hence . . . the law should favor its dissemination").
295. See Weinreb, supra note 19, at 1138 ("[F] air use has historically been and ought to remain what its name suggests: an exemption from copyright infringement for uses that are fair.");
296. id. at 1141 ("Although the courts were presumably construing the statute according to the legislative intent, it has from the beginning had the flavor of an equitable doctrine, importing, as its name indicates, considerations of fairness not directly related to the statutory purpose.").
297. See, e.g., BRUCE P. KELLER & JEFFREY P. CUNARD, COPYRIGHT LAW § 8:1 (2003) ("The central concept underlying the doctrine-an assessment of the 'fairness' of the use in question, based on a balancing of several factors - is inherently subjective. As a result, what one judge in his or her personal view regards as a 'fair use' may sharply contrast with what another judge down the hall may think.").
298. See, e.g., Leval, supra note 93, at 1126 (arguing that "[n] o justification exists for adding a morality test" to the fair use inquiry);
299. Madison, supra note 7, at 1555-56 (urging courts to consider not the legitimacy of the defendant's use, but rather its effect on social welfare);.
300. By this, courts typically meant simply that the fair use doctrine is "an equitable rule of reason, which permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." Stewart v. Abend, 495 U.S. 207, 236 (1990) (citations and internal quotation marks omitted)
301. (quoting Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 448 (1984)
302. and Iowa State Univ. Research Found., Inc. v. Am. Broad. Cos., 621 F.2d 57, 60 (2d Cir. 1980));
303. see also Shubha Ghosh, Deprivatizing Copyright, 54 CASE W. RES. L. REV. 387, 485 (2003) ("Even though fair use is a rule of law rather than an equitable rule, equitable principles often inform the manner in which the doctrine is applied.").
304. One opinion considered the defendant's bad faith under both the first factor and as an additional factor. See Haberman v. Hustler Magazine, Inc., 626 F. Supp. 201, 211 (D. Mass. 1986) (stating that the propriety of the defendant's conduct is relevant to the "character" of the use under factor one);
305. id. at 214 (reconsidering equitable conduct as an additional factor). The mean stampede score in the 14 opinions that found bad faith was -2.43 (standard deviation = 2.06), while the mean stampede score in the 28 opinions that found no bad faith was 1.82 (standard deviation = 2.31).
306. See Softel, Inc. v. Dragon Med. & Scientific Commc'ns, Inc., No. 87-0167, 1992 U.S. Dist. LEXIS 9502, at *57 (S.D.N.Y. June 29, 1992) ("In this case, defendants' lack of good faith in utilizing the routines tips the balance of the factors against a finding of fair use. Accordingly, plaintiff is entitled to recover on its claim of copyright infringement with respect to defendants' literal copying of plaintiffs image retrieval routines in the programs Hairy Cell Roche and Low Back Pain."). In this case, Softel yielded a stampede score of 0.
307. See, e.g., Rogers v. Koons, 960 F.2d 301, 309 (2d Cir. 1992) (considering the defendant's bad faith conduct in relation to the purpose and character of the use);
308. New Line Cinema Corp. v. Bertlesman Music Group, Inc., 693 F. Supp. 1517, 1530 (S.D.N.Y. 1988) ("The Court's conclusion is also bolstered by examining the propriety of Zomba's conduct in this case.");
309. Original Appalachian Artworks, Inc. v. Topps Chewing Gum, Inc., 642 F. Supp. 1031, 1036 (N.D. Ga. 1986) (finding the defendant's intention to trade on the plaintiffs good will to be an element of bad faith, which weighs against fair use).
310. 17 U.S.C. § 107 (2000 & Supp. IV 2004). See generally Madison, supra note 7, at 1552-57 (discussing the relevance of the listing of fair uses in the preamble of section 107).
311. Only 4 of these opinions involved standardized testing.
312. 17 U.S.C. § 107.
313. Id.
314. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586 (1994).
315. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 563 (1985) ("The law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy.").
316. An additional 26.0% of these 50 opinions yielded a stampede score of-2, meaning that three factors disfavored and one factor favored fair use. All of these opinions found no fair use, and all but one found that the sole factor not supporting that outcome was factor two.
317. Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1151 (9th Cir. 1986).
318. 17 U.S.C. § 107.
319. See generally Brett M. Frischmann & Mark A. Lemley, Spillovers, 107 COLUM. L. REV. 257, 286-90 (2007) (discussing the importance of positive externalities, or "spillovers," to a proper understanding of the fair use defense).
320. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 564 (1985).
321. Id. at 555.
322. Id. at 595 (Brennan, J., dissenting).
323. 811 F.2d 90, 97 (2d Cir. 1987).
324. See, e.g., New Era Publ's Int'l v. Henry Holt & Co., Inc., 873 F.2d 576, 583 (2d Cir. 1989) ("Where use is made of materials of an 'unpublished nature,' the second fair use factor has yet to be applied in favor of an infringer, and we do not do so here.");
325. Ass'n of Am. Med. Colls, v. Carey, 728 F. Supp. 873, 885 (N.D.N.Y. 1990) ("[A] copyrighted work which is both published and factual in nature is more properly subject to a fair use than an unpublished work that is fictional in nature . . . ."), rev'd sub nom. Ass'n of Am. Med. Colls, v. Cuomo, 928 F.2d 519 (2d Cir. 1991);
326. Love v. Kwitny, 706 F. Supp. 1123, 1133-34 (S.D.N.Y. 1989) (finding that the unpublished status of the plaintiffs work weighs "heavily" in the plaintiffs favor despite the work's factual nature and limited distribution).
327. 953 F.2d 731, 737 (2d Cir. 1991).
328. See generally Crews, supra note 28, at 40-42 (analyzing the impact these cases had on the Second Circuit's effectively establishing "a conclusive presumption" operating against a claim of fair use for unpublished works).
329. Pub. L. No. 102-492, 106 Stat. 3145 (1992) (codified as amended at 17 U.S.C. § 107 (2000 & Supp. IV 2004)).
330. See supra Table 9.
331. See, e.g., Maxtone-Graham v. Burtchaell, 631 F. Supp. 1432, 1437 (S.D.N.Y. 1986) ("The advancement of the social sciences and public discourse on an important issue is enhanced by permitting liberal, but fair, use of such materials.");
332. cf. Penelope v. Brown, 792 F. Supp. 132, 138 (D. Mass. 1992) ("Although Teaching About Doublespeak is still in print and is sold in college bookstores, it cannot be said to be widely available to the public. Lack of availability lends Brown greater justification for reproducing it.").
333. See, e.g., Encyclopaedia Britannica Educ. Corp. v. Crooks, 558 F. Supp. 1247, 1251 (W.D.N.Y. 1983) (" [C] opies of plaintiffs'works may be obtained for short periods through normal channels, and this factor does not shift any weight towards defendants' fair use contentions.");
334. Encyclopaedia Britannica Educ. Corp. v. Crooks, 542 F. Supp. 1156, 1177 (W.D.N.Y. 1982) ("[A]II the plaintiffs testified that they were readily able to supply and sell copies of their works .... In short, there are no factual characteristics necessary to justify fair use based upon the unavailability of the specific copyrighted works in this case.").
335. As between the creative/factual work inquiry and the published/ unpublished work inquiry, which inquiry had the greater impact on the outcome of factor two? The data are inconclusive. All of the 11 opinions that addressed the use of a creative, unpublished work found that factor two disfavored fair use, and 6 of the 7 opinions that addressed the use of a factual, published work found that factor two favored fair use. These results are not surprising. What happens, however, when the two subfactors under the second factor point in opposite directions? Twenty-two opinions addressed the use of a creative, published work, and 19 of these found that factor two disfavored fair use, while 6 opinions addressed the use of a factual, unpublished work and 4 of these found that factor two disfavored fair use. From this, we can tentatively conclude that a work's creative status trumps its published status, but that a work's factual status does not necessarily trump its unpublished status. 216 17 U.S.C. § 107.
336. Nevertheless, 10 opinions evaluated the extent of the taking as a proportion of the defendant's work, and 2 evaluated the extent of the taking both as a proportion of the plaintiffs work and as a proportion of the defendant's work.
337. Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104, 109 (2d Cir. 1998)
338. (quoting NIMMER, supranote 139, § 13.05[A] [3]).
339. NIMMER, sMjbranote 139, § 13.05[D][1].
340. 17 U.S.C. § 107.
341. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 566 (1985).
342. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994).
343. Williamson v. Pearson Educ., No. 00-8420, 2001 U.S. Dist. LEXIS 17062, at *19 (S.D.N.Y. Oct. 19,2001).
344. See Batesville Servs. v. Funeral Depot, Inc., No. 02-01011, 2004 U.S. Dist. LEXIS 24336, at *25 (S.D. Ind. Nov. 10, 2004);
345. Lamb v. Starks, 949 F. Supp. 753, 757 (N.D. CaI. 1996);
346. Lish v. Harper's Magazine Found., 807 F. Supp. 1090, 1104 (S.D.N.Y. 1992);
347. Softel, Inc. v. Dragon Med. & Scientific Commc'ns, Inc., No. 87-0167, 1992 U.S. Dist. LEXIS 9502, at *54 (S.D.N.Y. June 30, 1992).
348. See Religious Tech. Ctr. v. Lerma, No. 95-1107, 1996 U.S. Dist. LEXIS 15454, at *28-31 (E.D. Va. Oct. 4, 1996);
349. Religious Tech. Ctr. v. Netcom On-Line Comm'cn Servs., Inc., 923 F. Supp. 1231, 1248-49 (N.D. Cal. 1995).
350. Cf. Leval, supra note 93, at 1107 ("Decisions are not governed by consistent principles, but seem rather to result from intuitive reactions to individual fact patterns.").
351. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984).
352. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 591 (1994).
353. Id. (alteration in original) (citations omitted) (quoting Folsom v. Marsh, 9 F. Cas. 342, 348 (D. Mass. 1841))
354. (citing Sony, 464 U.S. at 451). The Sony Court stated that "[a] challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work." 464 U.S. at 451. Though this dictum was directed toward noncommercial uses, courts, such as the Campbell Court, applied it, a fortiori, to commercial uses.
355. Consider the remarkable post-Campbell Ninth Circuit opinion that cited to Harper &f Row for the proposition that the fourth factor is the most important and then cited both to the Campbell modification and to the original Sony presumption: The last, and "undoubtedly the single most important" of all the factors, is the effect the use will have on the potential market for and value of the copyrighted works. Harper &f Row, 471 U.S. at 566 .... The more transformative the new work, the less likely the new work's use of copyrighted materials will affect the market for the materials.
356. See CBS Broad., 305 F.3d at 941. Finally, if the purpose of the new work is commercial in nature, "the likelihood [of market harm] may be presumed." A & M Records, 239 F.3d at 1016
357. (quoting Sony, 464 U.S. at 451...).
358. Elvis Presley Enters., Inc. v. Passport Video, 349 F.3d 622, 630-31 (9th Cir. 2003) (alteration in original).
359. Only 2 of these opinions found that the defendant's use was transformative, and both of these opinions found that factor four, as well as the overall test, favored fair use. See Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1260 (2d Cir. 1986) (finding fair use where the borrowing author "applied substantial intellectual labor to the verbatim quotations"); Rubin v. Brooks/Cole Publ'g Co., 836 F. Supp. 909, 916 (D. Mass. 1993) (finding fair use where the unauthorized reprinting of a psychological scale was "productive and scholarly" and "encourage[d] the reader to question the validity of" the scale).
360. In 5 of these opinions, the court explicitly found that the defendant's use was transformative. Nevertheless, the court's failure in each of these opinions to apply the Campbell modification does not appear to have adversely affected the outcome of the fair use test. In each of these 5 opinions, the court found that factor four and the overall test favored a finding of fair use.
361. In 6 of these 14 opinions, the court found under factor one that the defendant's use was transformative, and in all but one of these 6, the court found that factor four and the overall test favored fair use. The one outlier was, as usual, Sun Trust Bank v. Houghton Mifflin Co., 136 F. Supp. 2d 1357 (N.D. Ga. 2001), vacated, 252 F.3d 1165 (11th Cir. 2001).
362. Sony, 464 U.S. at 451.
363. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994) (citations omitted) (omission in original)
364. (quoting NIMMER, supra note 137, § 13.05 [A] [4] ).
365. As Leval noted, Although the market factor is significant, the Supreme Court has somewhat overstated its importance. When the secondary use does substantially interfere with the market for the copyrighted work, as was the case in [Harper & Row], this factor powerfully opposes a finding of fair use. But the inverse does not follow. The fact that the secondary use does not harm the market for the original gives no assurance that the secondary use is justified. Thus, notwithstanding the importance of the market factor, especially when the market is impaired by the secondary use, it should not overshadow the requirement of justification under the first factor, without which there can be no fair use.
366. Leval, supranote 93, at 1124 (footnote omitted).
367. Campbell, 510 U.S. at 578.
368. See generally Wendy J. Gordon, Excuse and Justification in the Law of Fair Use: Commodification and Market Perspectives, in THE COMMODIFICATION OF INFORMATION 149 (Neil W. Netanel & Niva Elkin-Koren eds., 2002) (applying tort law concepts of excuse and justification to fair use doctrine).
369. One rough index of the impact of academic scholarship on the fair use case law is the proportion of opinions that cited a law review article of any kind through the course of their fair use analysis. Of the 7 Supreme Court opinions, 4 (or 57.1%) did so, while 25.0% of the 88 circuit court opinions and 10.9% of the district court opinions did so. However, if we exclude Judge Leval's Toward a Fair Use Standard article, supra note 93, from this tabulation, the percentages decline to 50.0% of the Supreme Court opinions, 14.7% (or 13 of 88) of the circuit court opinions, and 5.7% (or 12 of 211) of the district court opinions. The law review article other than Leval's cited by the most courts was Gordon, supra note 7. Six courts cited to it.
370. For other legal scholarship employing Atlas.ti, a qualitative data analysis program widely used in the social sciences, see, for example, Art Jipson, The Post-September 11th Era: Interpretations of Security and Civil Liberties in the Political Margins of the Left and Right, 2003 J. INST.JUST. INT'L STUD. 40 (examining the attitues of political figures toward terrorism using Atlas.ti);
371. Ronald Weitzer, Racialized Policing: Residents' Perceptions in Three Neighborhoods, 34 LAW & SOC'Y REV. 129, 132 (2000) (analogizing qualitative questionnaire data using Atlas.ti).