The ideology of authorship revisited: Authors, markets, and liberal values in early American copyright

Yale Law Journal

Volumn 118, Issue 2, 2008, Pages 186-271

  Bracha, Oren ^a  

^a UNIVERSITY OF TEXAS   (United States)

Author keywords

[No Author keywords available]

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EID: 59449097602     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/20454710     Document Type: Article

References (553)

1. THE CONSTRUCTION OF AUTHORSHIP: TEXTUAL APPROPRIATION IN LAW AND LITERATURE 2-3 (Martha Woodmansee & Peter Jaszi eds., 1994).
2. U.S. CONST, art. I, § 8, cl. 8.
3. ROLAND BARTHES, The Death of the Author, in IMAGE MUSIC TEXT 142 (Stephen Heath trans., 1977) ;
4. ANTOINE COMPAGNON, LITERATURE, THEORY, AND COMMON SENSE 31 (Carol Cosman trans., 2004) (writing that Barthes's The Death of the Author "became the antihumanist slogan of the science of the text, both for his partisans and his adversaries").
5. See COMPAGNON, supra note 3;
6. Michel Foucault, What Is an Author?, in TEXTUAL STRATEGIES: PERSPECTIVES IN POST-S TRUCTURALIST CRITICISM 141 (Josué V. Harari ed., 1979). The scholarship about copyright and original authorship is quite extensive.
7. See, e.g., JAMES BOYLE, SHAMANS, SOFTWARE, AND SPLEENS: LAW AND THE CONSTRUCTION OF THE INFORMATION SOCIETY (1996);
8. THE CONSTRUCTION OF AUTHORSHIP, supra note 1;
9. JOSEPH LOEWENSTEIN, THE AUTHOR'S DUE: PRINTING AND THE PREHISTORY OF COPYRIGHT (2002) ;
10. JOSEPH LOEWENSTEIN, BEN JONSON AND POSSESSIVE AUTHORSHIP (2002);
11. MARK ROSE, AUTHORS AND OWNERS: THE INVENTION OF COPYRIGHT (1993)
12. [hereinafter ROSE, AUTHORS AND OWNERS];
13. PAUL K. SAINT-AMOUR, THE COPYWRIGHTS: INTELLECTUAL PROPERTY AND THE LITERARY IMAGINATION (2003);
14. Keith Aoki, Authors, Inventors and Trademark Owners: Private Intellectual Property and the Public Domain (pts. 1 & 2), 18 COLUM.-VLA J.L. & ARTS 1, 191 (1993-1994);
15. James D.A Boyle, The Search for an Author: Shakespeare and the Framers, 37 AM. U. L. REV. 625 (1988);
16. Peter Jaszi, Toward a Theory of Copyright: The Metamorphoses of "Authorship," 1991 DUKE L.J. 455;
17. David Lange, At Play in the Fields of the Word: Copyright and the Construction of Authorship in the Post-Literate Millennium, LAW & CONTEMP. PROBS., Spring 1992, at 139;
18. Mark Rose, The Author as Proprietor: Donaldson v. Becket and the Genealogy of Modern Authorship, 23 REPRESENTATIONS 51, 76 (1988)
19. [hereinafter Rose, The Author as Proprietor] ;
20. Martha Woodmansee, The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the "Author," 17 EIGHTEENTH-CENTURY STUD. 425, 429 (1984).
21. The timing of the rise of the new concept of authorship is a matter of some disagreement. Pamela Long, for example, has argued that "the fully developed concept" of "'intellectual property'... emerge[d] in the medieval period around the 12th or 13th centuries" and that the connection to individual authorship in regard to material inventions was made in the fifteenth century. Pamela O. Long, Invention, Authorship, "Intellectual Property," and the Origin of Patents: Notes Toward a Conceptual History, 32 TECH. & CULTURE 846, 847-48 (1991). Exact periodization aside, it appears that most scholars would agree that the roots of the new concept of authorship trace back to the Renaissance and that its gradual development and spread extended for centuries.
22. The claim that the understanding of authorship was ideological has two possible meanings. One meaning of the term alludes to the claim that authorship was a contingent social construct. It did not simply elaborate or reflect the order of things in the world-the "real" or the "natural" relationship between texts and their producers. Instead, it arbitrarily privileged certain attributes and relations, while excluding others. See Foucault, supra note 4, at 150. A second meaning of " ideological" is being false or deceptive. In this sense, the claim is that original authorship was a false, distorted, or mystifying representation of the realities of the creative process. See infra text accompanying notes 344-347.
23. BOYLE, supra note 4, at 54;
24. Woodmansee, supra note 4, at 429 ;
25. Martha Woodmansee, On the Author Effect: Recovering Collectivity, in THE CONSTRUCTION OF AUTHORSHIP, supra note 1, at 15, 16.
26. BOYLE, supra note 4, at 54.
27. Woodmansee, supra note 4, at 427.
28. See BOYLE, supra note 4, at 56-57.
29. 8 Ann., c. 19 (1710).
30. See RONAN DEAZLEY, ON THE ORIGIN OF THE RIGHT TO COPY: CHARTING THE MOVEMENT OF COPYRIGHT LAW IN EIGHTEENTH-CENTURY BRITAIN (1695-1775), at 31-50 (2004). Scholars disagree whether the figure of the author was used strategically by the stationers to preserve their traditional privileges in a changing world, or whether it was used as a rhetorical device for attacking the stationers and breaking their monopoly.
31. For the former view, see JOHN FEATHER, PUBLISHING, PIRACY AND POLITICS: AN HISTORICAL STUDY OF COPYRIGHT IN BRITAIN 61-63 (1994);
32. and BENJAMIN KAPLAN ET AL., AN UNHURRIED VIEW OF COPYRIGHT REPUBLISHED (AND WITH CONTRIBUTIONS FROM FRIENDS) 6, 9 (Iris C. Geik et al. eds., LexisNexis Matthew Bender 2005) (1967).
33. For the latter view, see LYMAN RAY PATTERSON, COPYRIGHT IN HISTORICAL PERSPECTIVE 143-44 (1968).
34. See, e.g., DEAZLEY, supra note 12, at 115-210;
35. FEATHER, supra note 12, at 69-96;
36. PATTERSON, supra note 12, at 151-79;
37. BRAD SHERMAN & LIONEL BENTLY, THE MAKING OF MODERN INTELLECTUAL PROPERTY LAW: THE BRITISH EXPERIENCE, 1760-1911, at 19-42 (1999);
38. Howard B. Abrams, The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright, 29 WAYNE L. REV. 1119 (1983).
39. See, e.g., ROSE , AUTHORS AND OWNERS, supra note 4.
40. See, e.g., DEAZLEY, supra note 12, at 149-67;
41. ROSE, AUTHORS AND OWNERS, supra note 4, at 5-6 ;
42. Rose, The Author as Proprietor, supra note 4, at 56.
43. William Enfield, Observations on Literary Property 21 (1774),
44. reprinted in THE LITERARY PROPERTY DEBATE: EIGHT TRACTS, 1774-1775 (Stephen Parks ed., 1974).
45. After a brief period in which common law copyright was recognized in England under Millar v. Taylor, (1769) 98 Eng. Rep. 1378 (K.B.),
46. the House of Lords rejected common law copyright in Donaldson v. Beckett, (1774) 1 Eng. Rep. 837 (H.L.).
47. ROSE, AUTHORS AND OWNERS, supra note 4, at 132.
48. See Jaszi, supra note 4. Jaszi's account focuses on the nineteenth-century developments of authorship and copyright and in this respect is similar to mine. Jaszi writes, however, that by the early nineteenth century, authorship's "array of connotations and associations was essentially complete."
49. Id. at 471.
50. See, e.g., BOYLE, supra note 4;
51. Aoki, supra note 4, at 191;
52. Jaszi, supra note 4;
53. Lange, supra note 4.
54. See, e.g., Peter Jaszi & Martha Woodmansee, Introduction to THE CONSTRUCTION OF AUTHORSHIP, supra note 1, at 8.
55. Woodmansee, supra note 7, at 27-28.
56. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).
57. Warren Publ'g, Inc. v. Microdos Data Corp., 115 F.3d 1509 (11th Cir. 1997).
58. See 17 U.S.C. § 201(b) (2000) ;
59. id. § 101 (containing the definition of "work made for hire").
60. See Mark A. Lemley, Romantic Authorship and the Rhetoric of Property, 75 TEX. L. REV. 873 (1997)
61. (reviewing BOYLE, supra note 4) (finding that explanations of copyright law based on "romantic authorship" tell us little about the legal doctrine they purport to explain, do not describe these doctrines accurately, and are incapable of explaining the change and development in copyright law). Lemley suggests abandoning authorship as a central explanatory device of the development of modern copyright law and replacing it with a concept of property rights based on economic theory. My account differs from Lemley's in that my aim is not to debunk authorship-based explanations, but rather to revise them and make them more adequate for explaining copyright's past and present.
62. On colonial grants, see Oren Bracha, Owning Ideas: A History of Anglo American Intellectual Property 251-56 (June 2005) (unpublished S.J.D. dissertation, Harvard Law School) (on file with author). There existed neither general statutory copyright nor common law copyright during the colonial period. Occasional scholarly references to common law copyright in colonial America are inaccurate or misleading. See, e.g., 1 JOHN TEBBEL, A HISTORY OF BOOK PUBLISHING IN THE UNITED STATES 46 (1972) ("[I]t was theoretically possible to obtain an English common law copyright in the colonies. . ..");
63. Francine Crawford, Pre-Constitutional Copyright Statutes, 23 BULL. COPYRIGHT SOC'Y U.S. 11, 12 (1975) (stating that American publishers "were protected by English common law copyright and later by the British Copyright Act of 1710").
64. The exception of an author's claiming protection in his own work was William Billings's failed attempt to attain legislative protection in Massachusetts for his book of psalms. This episode, which came at the very end of the colonial period, marked the change that would become apparent after independence. See 1 RUSSELL SANJEK, AMERICAN POPULAR MUSIC AND ITS BUSINESS: THE FIRST FOUR HUNDRED YEARS 280-86 (1988);
65. Rollo G. Silver, Prologue to Copyright in America: 1772, in 11 STUDIES IN BIBLIOGRAPHY: PAPERS OF THE BIBLIOGRAPHICAL SOCIETY OF THE UNIVERSITY OF VIRGINIA 259 (Fredson Bowers ed., 1958);
66. Alan C. Buechner, Book Review, 33 NOTES (Second Series) 284, 285 (1976)
67. (reviewing DAVID P. MCKAY & RICHARD CRAWFORD, WILLIAM BILLINGS OF BOSTON: EIGHTEENTH CENTURY COMPOSER (1975)).
68. For a survey of these statutes, see Crawford, supra note 27;
69. and 1 WILLIAM PATRY, PATRY ON COPYRIGHT § 1:17, at 1-184 to 1-201 (2007).
70. IV PAPERS OF THE CONTINENTAL CONGRESS, 1774-1789, No. 78, at 370 (1783), microfilmed on Microcopy No. 247, Roll 92 (Nat'l Archives Microfilm Publ'ns).
71. Id.
72. Id.
73. Id. at 371.
74. The state copyright statutes are reprinted in COPYRIGHT ENACTMENTS OF THE UNITED STATES 1783-1906, at 11-31 (Thorvald Solberg ed., rev. 2d ed. 1906).
75. Id. at 14.
76. For an analysis of the state statutes' preambles, see Crawford, supra note 27.
77. U.S. CONST, art. I, § 8, cl. 8.
78. Act of May 31, 1790, ch. 15, 1 Stat. 124 (repealed 1802).
79. IV PAPERS OF THE CONTINENTAL CONGRESS, 1774-1789, supra note 30, No. 78, at 370.
80. Act of May 31, 1790, ch. 15, § 1, 1 Stat. 124, 124 (repealed 1802).
81. Jaszi, supra note 4, at 456.
82. 188 U.S. 239 (1903).
83. See BOYLE, supra note 4, at 55;
84. William W. Fisher III, Geistiges Eigentum-ein ausufernder Rechtsberein. Die Geschichte des Ideenschutzes in den Vereinigten Staaten [The Growth of Intellectual Properly: A History of the Ownership of Ideas in the United States], in EIGENTUM IM INTERNATIONALEN VERGLEICH [PROPERTY IN INTERNATIONAL PERSPECTIVE] 265, 281 n.71 (Hannes Siegrist & David Sugarman eds., 1999) ;
85. Jaszi, supra note 4, at 481-83.
86. Bleistein, 188 U.S. at 250.
87. Id. at 251-52.
88. Id.
89. See generally Diane Leenheer Zimmerman, The Story of Bleistein v. Donaldson Lithographing Company: Originality as a Vehicle for Copyright Inclusivity, in INTELLECTUAL PROPERTY STORIES 77 (Jane C. Ginsburg & Rochelle Cooper Dreyfuss eds., 2006) (describing the background and significance of Bleistein).
90. See infra text accompanying notes 82-104.
91. 8 F. Cas. 615 (Story, Circuit Justice, C.C.D. Mass. 1845) (No. 4436).
92. Id. at 619.
93. Woodmansee, supra note 7, at 27.
94. Emerson, 8 F. Cas. at 619.
95. Id. at 621. "Valere quantum valere potest" roughly means "with as much value as he can get."
96. 10 F. Cas. 1035 (Story, Circuit Justice, C.C.D. Mass. 1839) (No. 5728).
97. See, e.g., Boucicault v. Fox, 3 F. Cas. 977, 982 (C.C.S.D.N.Y. 1862) (No. 1691) (echoing Justice Story's rhetoric and writing that many of "the plays of Shakespeare are framed out of materials which existed long before his time, and were gathered by him from ancient chronicles, and other dusty receptacles of antiquated literature"); Atwill v. Ferrett, 2 F. Cas. 195, 198 (C.C.S.D.N.Y. 1846) (No. 640);
98. GEORGE TICKNOR CURTIS, A TREATISE ON THE LAW OF COPYRIGHT 173 (1847). Other cases employed the rationale of Justice Story's decisions without citing them.
99. See, e.g., Ladd v. Oxnard, 75 F. 703, 731 (C.C.D. Mass. 1896) (No. 707) ("[T] he quality and grade of original work required by the courts under the copyright statutes are very moderate.");
100. Brightley v. Littleton, 37 F. 103, 104 (C.C.E.D. Pa. 1888) ("The originality, however, may be of the lowest order ....").
101. 13 F. Cas. 910 (Nelson, Circuit Justice, C.C.S.D.N.Y. 1850) (No. 7437).
102. Jollie, 13 F. Cas. at 913.
103. Importantly, a year later in Hotchkiss v. Greenwood, 52 U.S. 248 (1851), Justice Nelson introduced to American patent law what later became the nonobviousness requirement. In Hotchkiss, Justice Nelson used terms very similar to those he used in his Jollie opinion, explaining that a patentable invention must be the work of a genius inventor rather than that of an "ordinary mechanic."
104. Id. at 267.
105. Id. at 913-14.
106. 5 F. Cas. 999, 1000 (Thompson, Circuit Justice, C.C.S.D.N.Y. 1829) (No. 2872).
107. Id.
108. Id. at 1003.
109. Id. (citation omitted).
110. Id.
111. See, e.g., J.L. Mott Iron Works v. Clow, 82 F. 316, 319 (7th Cir. 1897);
112. Lamb v. Grand Rapids Sch. Furniture Co., 39 F. 474 (C.C.W.D. Mich. 1889);
113. Schumacher v. Schwencke, 25 F. 466, 467-68 (C.C.S.D.N.Y. 1885);
114. Yuengling v. Schile, 12 F. 97, 100 (C.C.S.D.N.Y. 1882);
115. Ehret v. Pierce, 10 F. 553, 554 (C.C.E.D.N.Y. 1880);
116. Collender v. Griffith, 6 F. Cas. 104 (C.C.S.D.N.Y. 1873) (No. 3000);
117. Scovillev. Toland, 21 F. Cas. 863 (C.C.D. Ohio 1848) (No. 12.553).
118. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 253 (1903) (Harlan, J., dissenting) (citation omitted).
119. 16 F. Cas. 920 (C.C.D. Cal. 1867) (No. 9173);
120. see also Barnes v. Miner, 122 F. 480, 492 (S.D.N.Y. 1903) ("Society may tolerate, and even patronize, such exhibitions, but Congress has no constitutional authority to enact a law that will copyright them, and the courts will degrade themselves when they recognize them as entitled to the protection of the law.").
121. 16 F. Cas. at 922.
122. Id.
123. Id.
124. Id.
125. EATON S. DRONE, A TREATISE ON THE LAW OF PROPERTY IN INTELLECTUAL PRODUCTIONS IN GREAT BRITAIN AND THE UNITED STATES EMBRACING COPYRIGHT IN WORKS OF LITERATURE AND ART, AND PLAYWRIGHT IN DRAMATIC AND MUSICAL COMPOSITIONS 209-10 (photo, reprint 1979) (Boston, Little, Brown, & Co. 1879).
126. Id. at 210.
127. Id. at 211.
128. Id.
129. Id.
130. 100 U.S. 82 (1879).
131. U.S. CONST. art. I, § 8, cl. 8.
132. 100 U.S. at 94.
133. Id.
134. Id.
135. Higgins v. Keuffel, 140 U.S. 428, 431 (1891);
136. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57-60 (1884);
137. Am. Mutoscope & Biograph Co. v. Edison Mfg. Co., 137 F. 262, 265-67 (C.C.D.N.J. 1905);
138. Courier Lithographing Co. v. Donaldson Lithographing Co., 104 F. 993, 994-95 (6th Cir. 1900);
139. Falk v. City Item Printing Co., 79 F. 321 (C.C.E.D. La. 1897);
140. Falk v. Donaldson, 57 F. 32, 34 (C.C.S.D.N.Y. 1893). The outcome, but not the premise that originality has a constitutional status, was reversed in Bleistein.
141. See Joseph J. Felcone, New Jersey Copyright Registrations 1791-1845, 104 PROC. AM. ANTIQUARIAN SOC'Y 51 (1995);
142. James Gilreath, American Literature, Public Policy and the Copyright Laws Before 1800, in FEDERAL COPYRIGHT RECORDS 1790-1800, at xv, xv (James Gilreath ed., 1987);
143. Meredith L. McGill, Copyright in the Early Republic, in 2 A HISTORY OF THE BOOK IN AMERICA (Robert A. Gross & Marry Kelly eds., forthcoming 2009).
144. WILLIAM CHARVAT, The Condition of Authorship in 1820, in THE PROFESSION OF AUTHORSHIP IN AMERICA, 1800-1870: THE PAPERS OF WILLIAM CHARVAT 29, 34-35 (Matthew J. Bruccoli ed., 1968)
145. [hereinafter CHARVAT PAPERS]. It is estimated that, in 1860, textbooks constituted thirty to forty percent of the books published in the United States. In later times, this relative share increased.
146. TEBBEL, supra note 27, at 222.
147. HELLMUT LEHMANN-HAUPT, THE BOOK IN AMERICA: A HISTORY OF THE MAKING, THE SELLING, AND THE COLLECTING OF BOOKS IN THE UNITED STATES 122 (1939). In the 1830s, one hundred books on average were published each year in the United States. In 1859, the figure rose to 1350. In 1820, the value of books manufactured and sold in the United States was $2.5 million. In 1856, this value was $16 million.
148. TEBBEL, supra note 27, at 221. Underlying this expansion were technological, economic, and social developments. Some of the most important developments were advances in printing and book-making technology such as the flatbed iron press and, later, the steam and electricity-powered cylinder presses; the transportation revolution, which first arose in the form of canals and later railroads; and the increased rates of literacy.
149. For the role of technological developments, see LEHMANN- HAUPT, supra, at 71-83;
150. JUDITH A. MCGAW, MOST WONDERFUL MACHINE: MECHANIZATION AND SOCIAL CHANGE IN BERKSHIRE PAPER MAKING, 1801-1885 (1987);
151. TEBBEL, supra note 27, at 257-62;
152. and RONALD J. ZBORAY, A FICTIVE PEOPLE: ANTEBELLUM ECONOMIC DEVELOPMENT AND THE AMERICAN READING PUBLIC 5-11 (1993)
153. [hereinafter ZBORAY, A FICTIVE PEOPLE].
154. For history of the transportation revolution, see GEORGE ROGERS TAYLOR, THE TRANSPORTATION REVOLUTION 1815-1860 (The Economic History of the United States vol. 4, 1951);
155. TEBBEL, supra note 27, at 204, 207;
156. ZBORAY, A FICTIVE PEOPLE, supra, at 12-14, 55-68;
157. and Ronald J. Zboray, The Transportation Revolution and Antebellum Book Distribution Reconsidered, 38 AM. Q., 53 (1986)
158. [hereinafter Zboray, Transportation Revolution].
159. For history of the rise of literacy rates, see WILLIAM J. GILMORE, READING BECOMES A NECESSITY OF LIFE: MATERIAL AND CULTURAL LIFE IN RURAL NEW ENGLAND, 1780-1835 (1989);
160. LEE SOLTOW & EDWARD STEVENS, THE RISE OF LITERACY AND THE COMMON SCHOOL IN THE UNITED STATES: A SOCIO- ECONOMIC ANALYSIS TO 1870 (1981);
161. and 1 TEBBEL, supra note 27, at 207.
162. 1 TEBBEL, supra note 27, at 206-07;
163. James Gilreath, American Book Distribution, 95 PROC. AM. ANTIQUARIAN SOC'Y 501 (1986).
164. For a somewhat critical assessment of the common claim that the price of books significantly reduced, see ZBORAY, A FICTIVE PEOPLE, supra note 84, at 11-12.
165. Id. at 4. Accompanying the publishers' celebratory image of this shift were also the protests and complaints of its victims: journeymen and other artisans who were reduced to the level of wage laborers.
166. On the metamorphosis of the printing craft into a publishing industry, see id. at 6-9.
167. 1 TEBBEL, supra note 27, at 212-13.
168. Id. at 207;
169. ZBORAY, A FICTIVE PEOPLE, supra note 84, at 17-18.
170. LUKE WHITE, JR., HENRY WILLIAM HERBERT AND THE AMERICAN PUBLISHING SCENE 1831-1858, at 7-8 (1943).
171. See WILLIAM CHARVAT, The Beginnings of Professionalism, in CHARVAT PAPERS, supra note 83, at 5, 18-28. This is not to say, of course, that earlier publishers or authors had no profit motive. The point is that the industry was reshaped in a way that stimulated new patterns and strategies of market behavior, and a new self-consciousness grew in this respect.
172. International copyright protection was a recurring issue of fierce debate in the United States during the nineteenth century. Despite continuous lobbying and criticism, both foreign and domestic, it was only by 1891 that the tide had changed, and the United States began to recognize copyright in foreign works through the Chace International Copyright Act. Act of Mar. 3, 1891, ch. 565, 26 Stat. 1106. In 1853, there were 733 works published in the United States. Two hundred seventy-eight of them were reprints of British works and thirty-five were translations of other foreign works. See ZBORAY, A FICTIVE PEOPLE, supra note 84, at 3.
173. Other characteristics of nineteenth-century copyright, such as stringent registration, deposit, and notice requirements, as well as the cost of enforcement, often made reliance on copyright unattractive in the context of cheap publication formats. See Christopher Sprigman, Reform(aliz)ing Copyright, 57 STAN. L. REV. 485, 502-28 (2004) (discussing the "filtering" function of nineteenth-century copyright). Nevertheless, it seems that at least in some of the strategies involved, publishers did try to rely on copyright protection.
174. See generally PUBLISHERS FOR MASS ENTERTAINMENT IN NINETEENTH CENTURY AMERICA (Madeleine B. Stern ed., 1980) (surveying various nineteenth-century publishers of popular and entertainment publications).
175. ISABELLE LEHUU, CARNIVAL ON THE PAGE: POPULAR PRINT MEDIA IN ANTEBELLUM AMERICA 59-75 (2000);
176. ZBORAY, A FICTIVE PEOPLE, supra note 84, at 32-34.
177. 1 TEBBEL, supra note 27, at 248-51;
178. ZBORAY, A FICTIVE PEOPLE, supra note 84, at 31-32.
179. LEHUU, supra note 94, at 36-58.
180. Id. at 76-101;
181. TEBBEL, supra note 27, at 252-54.
182. Advertisement, N.Y. TRIB., June 7, 1860, at 1.
183. LEHUU, supra note 94, at 126-55.
184. Henry Longfellow and his publishers were the pioneers of many of these new marketing techniques, including sophisticated price-discrimination strategies. 1 TEBBEL, supra note 27, at 211-12;
185. WILLIAM CHARVAT, Longfellow's Income from His Writings, 1840-1852, in CHARVAT PAPERS, supra note 83, at 155, 162-63.
186. LEHUU, supra note 94, at 72-73;
187. TEBBEL, supra note 27, at 219, 240-51.
188. See generally PAUL STARR, THE CREATION OF THE MEDIA: POLITICAL ORIGINS OF MODERN COMMUNICATIONS 233-384 (2004) (describing the appearance of the modern content industries around the turn of the twentieth century).
189. For the changing social conceptualization of photography and its relationship with copyright, see Christine Haight Farley, The Lingering Effects of Copyright's Response to the Invention of Photography, 65 U. PITT. L. REV. 385, 395-415 (2004).
190. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903);
191. Mut. Adver. Co. v. Refo, 76 F. 961 (C.C.D.S.C 1896);
192. Yuengling v. Schile, 12 F. 97 (C.C.S.D.N.Y. 1882);
193. Lawrence v. Cupples, 15 F. Cas. 25 (C.C.D. Mass. 1875) (No. 8135).
194. J.L. Mott Iron Works v. Clow, 82 F. 316 (7th Cir. 1897);
195. Clayton v. Stone, 5 F. Cas. 999 (Thompson, Circuit Justice, C.C.S.D.N.Y. 1829) (No. 2872).
196. Higgins v. Keuflel, 140 U.S. 428, 431 (1891);
197. Scoville v. Toland, 21 F. Cas. 863 (C.C.D. Ohio 1848) (No. 12, 553).
198. MEREDITH L. MCGILL, AMERICAN LITERATURE AND THE CULTURE OF REPRINTING, 1834-1853, at 3-4 (2003).
199. Therefore, the common account of a collective action problem that consistently skews the politics of intellectual property in favor of protectionist trends does not seem to be conclusively applicable. For public choice and collective action failures as an explanation of the development of intellectual property law, see Fisher, supra note 43, at 277-80;
200. Robert P. Merges, Intellectual Property Rights and the New Institutional Economics, 53 VAND. L. REV. 1857, 1875 (2000);
201. Robert P. Merges, One Hundred Years of Solicitude: Intellectual Property Law, 1900-2000, 88 CAL. L. REV. 2187 (2000);
202. and Yochai Benkler, The Battle over the Institutional Ecosystem in the Digital Environment, COMM. OF THE ACM, Feb. 2001, at 84, 89.
203. See CARTER GOODRICH, GOVERNMENT PROMOTION OF AMERICAN CANALS AND RAILROADS, 1800-1890 (1960);
204. OSCAR HANDLIN & MARY FLUG HANDLIN, COMMONWEALTH: A STUDY OF THE ROLE OF GOVERNMENT IN THE AMERICAN ECONOMY: MASSACHUSETTS, 1774-1861 (rev. ed. 1969);
205. LOUIS HARTZ, ECONOMIC POLICY AND DEMOCRATIC THOUGHT: PENNSYLVANIA, 1776-1860 (1948).
206. For a general survey, see Robert A. Lively, The American System: A Review Article, 29 BUS. HIST. REV., Mar. 1955, at 81, which is critical of the alleged commonwealth-scholarship tendency to neglect the empirical examination of actual governmental practices and their effects;
207. and Harry N. Scheiber, Government and the Economy: Studies of the "Commonwealth" Policy in Nineteenth-Century America, 3 J. INTERDISC. HIST. 135 (1972)
208. (reviewing HANDLIN & HANDLIN, supra).
209. WILLIAM J. NOVAK, THE PEOPLE'S WELFARE: LAW AND REGULATION IN NINETEENTH- CENTURY AMERICA 84-105 (1996);
210. Scheiber, supra note 109, at 135-36. Indeed, the very term "economy" had a meaning different than the modern one. As William Novak explained, by the late eighteenth century the word roughly meant "any society ordered after the manner of a family or, similarly, the general administration of the concerns of a community with a view to orderly conduct and productiveness."
211. NOVAK, supra, at 87.
212. HANDLIN & HANDLIN, supra note 109, at 61-64;
213. NOVAK, supra note 110, at 3.
214. HANDLIN & HANDLIN, supra note 109, at 51-86;
215. Harry N. Scheiber, Government and the American Economy: Three Stages of Historical Change, 1790-1941, in ESSAYS FROM THE LOWELL CONFERENCE ON INDUSTRIAL HISTORY 1980 AND 1981, at 128-34 (Robert Weible, Oliver Ford & Paul Marion eds., 1981).
216. See HANDLIN& HANDLIN, supra note 109, at 51-52; Scheiber, supra note 109, at 136.
217. The Handlins called this new model "a humanitarian police state." HANDLIN & HANDLIN, supra note 109, at 203.
218. Id. at 213-44;
219. Scheiber, supra note 112, at 136.
220. HANDLIN & HANDLIN, supra note 109, at 170-189;
221. LAWRENCE FREDERICK KOHL, THE POLITICS OF INDIVIDUALISM: PARTIES AND THE AMERICAN CHARACTER IN THE JACKSONIAN ERA 133-44 (1989);
222. Scheiber, supra note 109, at 136.
223. HARTZ, supra note 109, at 79-81;
224. Morton J. Horwitz, The History of the Public/Private Distinction, 130 U. PA. L. REV. 1423 (1982).
225. JAMES WILLARD HURST, THE LEGITIMACY OF THE BUSINESS CORPORATION IN THE LAW OF THE UNITED STATES 1780-1970 (1970);
226. KOHL, supra note 116, at 215;
227. ARTHUR M. SCHLESINGER, JR., THE AGE OF JACKSON 23-26, 306-21, 334-39 (1945);
228. HARRY L. WATSON, LIBERTY AND POWER: THE POLITICS OF JACKSONIAN AMERICA 34-35 (1990);
229. William Weston Fisher III, The Law of the Land: An Intellectual History of American Property Doctrine, 1776-1880, at 370 (Sept. 1991) (unpublished Ph.D. dissertation, Harvard University) (on file with author).
230. See supra text accompanying notes 27-28.
231. See supra text accompanying notes 29-36.
232. For an explanation of the early date of this shift from specific privileges to universal rights in the context of copyright and patents, in contrast to other fields, such as corporate charters, see Bracha, supra note 27, at 553-73.
233. See supra text accompanying notes 56-71.
234. 5 F. Cas. 999, 1003 (Thompson, Circuit Justice, C.C.S.D.N.Y. 1829) (No. 2872).
235. ATLANTIC MAG., Feb. 1, 1825, at 272, 273 [hereinafter Atlantic Mag. Essay]
236. Id. at 280.
237. Emerson v. Davies, 8 F. Cas. 615, 621 (Story, Circuit Justice, C.C.D. Mass. 1845) (No. 4436);
238. see supra note 53.
239. The literature about the rise of the market is vast. For general surveys, see Allan Kulikoff, The Transition to Capitalism in Rural America, 46 WM. & MARY Q̌ 120, 122-26 (1989);
240. Michael Merrill, Putting Capitalism in Its Place: A Review of Recent Literature, 52 WM. & MARY Q. 315 (1995);
241. and Gordon S. Wood, The Enemy Is Us: Democratic Capitalism in the Early Republic, 16 J. EARLY REPUBLIC 293, 293-98 (1996).
242. See George M. Armstrong, Jr., From the Fetishism of Commodities to the Regulated Market: The Rise and Decline of Property, 82 NW. U. L. REV. 79, 86-91 (1987).
243. FRANCIS WAYLAND, THE ELEMENTS OFPOLITICALECONOMY 15-24 (1853).
244. The most detailed exploration of this outlook in early American law is Morton Horwitz's analysis of contract law and the equitable conception of contracts. See MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1780-1860, at 161 (1977).
245. For a skeptical analysis of Horwitz's argument in the context of contract law, see A.W.B. Simpson, The Horwitz Thesis and the History of Contracts, 46 U. CHI. L. REV. 533 (1979).
246. For a survey of the debate, see Robert W. Gordon, Morton Horwitz and His Critics: A Conflict of Narratives, 37 TULSA L. REV. 915, 918-19 (2002).
247. Thus, Benjamin Franklin could speak of "fair commerce" as the exchange of "equal values." BENJAMIN FRANKLIN, Positions To Be Examined, Concerning National Wealth (Apr.4, 1769), in 4 THE COMPLETE WORKS OF BENJAMIN FRANKLIN 235, 236 (John Bigelow ed., New York, Putnam 1887).
248. Armstrong, supra note 128, at 91-96;
249. Oren Bracha, The Commodification of Patents 1600-1836: How Patents Became Rights and Why We Should Care, 38 LOY. L.A. L. REV. 177, 230-39 (2004).
250. ARTHUR LATHAM, ELEMENTS OF POLITICAL ECONOMY (7th ed. 1872);
251. see also WILLARD PHILLIPS, A MANUAL OF POLITICAL ECONOMY WITH REFERENCE TO THE INSTITUTIONS, RESOURCES, AND CONDITION OF THE UNITED STATES 29 (1828) (observing that a thing "can hardly be said to have an intrinsic value, since its value depends upon the desire of others to obtain it from the possessor by giving something in exchange").
252. Books as commodities, in the context of the new publishing industry, were one of the most striking examples of the dependence of value on market whims. See ZBORAY, A FICTIVE PEOPLE, supra note 84, at 17.
253. Letter from Washington Irving to John Pendleton Kennedy (June 5, 1835), in 2 WASHINGTON IRVING LETTERS 829 (Ralph M. Aderman, Herbert L. Kleinfeld & Jennifer S. Banks eds., 1979).
254. Irving was referring to the novel JOHN PENDLETON KENNEDY, HORSE SHOE ROBINSON: A TALE OF THE TORY ASCENDANCY (1835).
255. Atlantic Mag. Essay, supra note 124, at 273.
256. Id. at 274.
257. Barnes v. Miner, 122 F. 480, 492 (S.D.N.Y. 1903).
258. 8 F. Cas. 615, 621 (Story, Circuit Justice, C.C.D. Mass. 1845) (No. 4436).
259. Id. at 620.
260. Henderson v. Tompkins, 60 F. 758, 763 (C.C.D. Mass. 1894).
261. Id. at 764.
262. On the rise of social instrumentalism in nineteenth-century American law, see generally HORWITZ, supra note 130, at 1-30;
263. JAMES WILLARD HURST, LAW AND THE CONDITIONS OF FREEDOM IN THE NINETEENTH-CENTURY UNITED STATES (1956);
264. and William E. Nelson, The Impact of the Antislavery Movement upon Styles of Judicial Reasoning in Nineteenth Century America, 87 HARV. L. REV. 513 (1974).
265. For a much more skeptical view about the claim that the mid-nineteenth-century mode of judicial reasoning was overwhelmingly instrumentalist and that after the Civil War it was supplanted by a formalist higher law approach, see Harry N. Scheiber, Instrumentalism and Property Rights: A Reconsideration of American "Styles of Judicial Reasoning" in the 19th Century, 1975 WIS. L. REV. 1.
266. See Fisher, supra note 118, at 109-110.
267. For a somewhat different account of the period's "legal consciousness" described as "pre-classical legal thought," see DUNCAN KENNEDY, THE RISE AND FALL OF CLASSICAL LEGAL THOUGHT (2006).
268. HORWITZ, supra note 130, at 253-66;
269. KENNEDY, supra note 144;
270. WILLIAM M. WIECEK, THE LOST WORLD OF CLASSICAL LEGAL THOUGHT: LAW AND IDEOLOGY IN AMERICA, 1886-1937 (1998).
271. HORWITZ, supra note 130, at 9-19;
272. Thomas C. Grey, Langdell's Orthodoxy, 45 U. PITT. L. REV. 1 (1983). The question of the extent to which late nineteenth-century American jurists were "formalists" in the strong sense - that is, the extent to which they believed in and advocated a theory of law as a "gapless" system of norms capable of producing one right answer in any case on the basis of strict logical deduction procedures - is a matter of some controversy.
273. See DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION 105 (1997) (arguing that this understanding of formalism as a gapless system was invented by later critics of late nineteenth-century legal thought) ; David Rabban, Law's History: Late Nineteenth-Century American Legal Scholarship and the Transatlantic Turn to History (Sept. 18, 2008) (unpublished manuscript, on file with author) (criticizing the assumption that dominant late nineteenth-century American jurists believed in a gapless legal system based on logical deduction);
274. Brian Z. Tamanaha, The Bogus Tale About the Legal Formalists (St. John's Legal Studies Research Paper Series, Paper No. 08-0130, 2008), available at http://ssrn.com/abstract=ii23498 (arguing that the conventional wisdom that late nineteenth-century American jurists were formalists and believed in deductive legal reasoning is false and was invented by later critics). The question of formalism in this strong sense aside, there is less controversy regarding the more modest contention that late nineteenth-century legal thought and reasoning in America were typically less openly instrumentalist and more formal than in the first half of the century.
275. For an argument that the rise of formalism was related to the legal profession's interests and self-image, see HORWITZ, supra note 130, at 258. Horwitz further claims that the rise of formalism was also related to the interest of mercantile and entrepreneurial groups in freezing a reallocation of wealth and power achieved through legal changes in the early nineteenth century.
276. Id. at 259. My argument here is agnostic to this furdier claim.
277. Of course, the choice of the level and character of copyright's originality standard was itself a substantive policy choice with important social implications. It was, however, much easier to repress and ignore this fact, especially in comparison to overt judgments of substantive originality by judges.
278. 60 F. 758, 763 (C.C.D. Mass. 1894).
279. Id.
280. Justice Holmes was no great subscriber to legal formalism. He strongly believed, however, in objective legal standards and objected to any trace of subjective moralism in the law. See HORWITZ, supra note 130, at 236-37.
281. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903).
282. See THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (2d ed. 1970).
283. 23 F. Cas. 201 (Grier, Circuit Justice, C.C.E.D. Pa. 1853) (No. 13,514);
284. see also Melissa J. Homestead, "When I Can Read My Title Clear": Harriet Beecher Stowe and the Stowe v. Thomas Copyright Infringement Case, 27 PROSPECTS 201 (2002) (describing the case and its implications).
285. 23 F. Cas. at 206.
286. Id. at 206-07.
287. Anticipating Stowe's holding, George Ticknor Curtis had launched, in his important 1847 copyright treatise, a fierce assault on the English precedents that exempted translations. CURTIS, supra note 55, at 293.
288. Eaton Drone included in his 1879 treatise a whole subsection entided "Stowe v. Thomas Criticised." DRONE, supra note 71, at 454-55.
289. Act of July 8, 1870, ch. 230, § 86, 16 Stat. 198, 212.
290. 4 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS OF THE UNITED STATES OF AMERICA: LEGISLATIVE HISTORIES 511 (Charlene Bangs Brickford & Helen E. Veit eds., 1986).
291. Id.
292. Tonson v. Walker, (1752) 36 Eng. Rep. 1017, 1019-20 (Ch.);
293. Gyles v. Wilcox, (1740) 26 Eng. Rep. 489, 490 (Ch.);
294. Cary v. Kearsley, (1802) 170 Eng. Rep. 679, 680 (K.B.);
295. Sayre v. Moore, (1785) 102 Eng. Rep 139, 140 (K.B.).
296. For an early American case following the same principles in defining infringement, see Blunt v. Patten, 3 F. Cas. 763, 765 (Thompson, Circuit Justice, C.C.S.D.N.Y. 1828) (No. 1580).
297. 26 Eng. Rep. at 490.
298. 170 Eng. Rep. at 680 ;
299. see RICHARD GODSON, A PRACTICAL TREATISE ON THE LAW OF PATENTS FOR INVENTIONS AND OF COPYRIGHT 477 (2d ed. 1844).
300. CURTIS, supra note 55, at 237-38.
301. Id. at 240.
302. Id.
303. Id. at 240-41.
304. Id. at 271.
305. Id. at 275-76.
306. Id. at 237-38.
307. Id. at 292-93.
308. 2 JOSEPH STORY, COMMENTARIES ON EQUITY JURISPRUDENCE, AS ADMINISTERED IN ENGLAND AND AMERICA 214 (1836).
309. Id.
310. 10 F. Cas. 1035 (Story, Circuit Justice, C.C.D. Mass. 1839) (No. 5728).
311. Id. at 1038.
312. 9 F. Cas. 342 (Story, Circuit Justice, C.C.D. Mass. 1841) (No. 4901).
313. See generally R. Anthony Reese, The Story of Folsom v. Marsh: Distinguishing Between Infringing and Legitimate Uses, in INTELLECTUAL PROPERTY STORIES, supra note 47, at 259
314. (describing the background of Folsom and its significance).
315. See John Tehranian, Et Tu, Fair Use? The Triumph of Natural-Law Copyright, 38 U.C. DAVIS L. REV. 465, 481 (2005) ;
316. Bracha, supra note 27, at 326-29.
317. Folsom, 9 F. Cas. at 344.
318. Id.
319. Id.
320. Id. at 348.
321. Id.
322. See Drury v. Ewing, 7 F. Cas. 1113, 1166 (C.C.S.D. Ohio 1862) (No. 4095) (holding that "the true inquiry undoubtedly is, not whether the one is a facsimile of the other");
323. Greene v. Bishop, 10 F. Cas. 1128, 1134 (Clifford, Circuit Justice, C.C.D. Mass. 1858) (No. 5763);
324. Webb v. Powers, 29 F. Cas. 511, 519 (Woodbury, Circuit Justice, C.C.D. Mass. 1847) (No. 17, 323);
325. Emerson v. Davies, 8 F. Cas. 615 (Story, Circuit Justice, C.C.D. Mass. 1845) (No. 4436).
326. The final formal reversal of the safe haven for abridgments occurred in Lawrence v. Dana, 15 F. Cas. 26 (Clifford, Circuit Justice, C.C.D. Mass. 1869) (No. 8136).
327. An exclusive translation right was added by a statutory amendment in 1870. Act of July 8, 1870, ch. 230, § 86, 16 Stat. 198, 212.
328. See, e.g., Maxwell v. Goodwin, 93 F. 665 (C.C.N.D. Ill. 1899);
329. Gilmore v. Anderson, 38 F. 846, 849 (C.C.S.D.N.Y. 1889);
330. Daly v. Palmer, 6 F. Cas. 1132 (C.C.S.D.N.Y. 1868) (No. 3552).
331. Act of July 8,1870, ch. 230, § 86,16 Stat. 198, 212.
332. The 1909 Copyright Act protected not only the public performance of dramatic and musical compositions, but also the public delivery of a "lecture, sermon, address, or similar production." The already existing prohibition on dramatization blocked another avenue for public performance, although a public reading of a non-dramatic work was arguably still permissible. See Act of Mar. 4, 1909, ch. 320, § 1(b)-(e), 35 Stat. 1075, 1075-189.
333. Bracha, supra note 27, at 354-73.
334. Lawrence v. Dana, 15 F. Cas. 26, 59 (Clifford, Circuit Justice, C.C.D. Mass. 1869) (No. 8136).
335. DRONE, supra note 71, at 451.
336. Id. at 464.
337. Id. at 451.
338. 3 AM. L. REV. 453, 453 (1869)
339. (citing Daly v. Palmer, 6 F. Cas. 1132 (C.C.S.D.N.Y. 1868) (No. 3552)).
340. 6 F. Cas. at 1138.
341. 93 F. 665, 666 (C.C.N.D. Ill, 1899).
342. DRONE, supra note 71, at 97-98, 384-85.
343. Bracha, supra note 27, at 202-29.
344. Id. at 296-304 (discussing Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834));
345. Meredith L. McGill, The Matter of the Text: Commerce, Print Culture, and the Authority of the State in American Copyright Law, 9 AM. LITERARY HIST. 21, 28 (1997).
346. CURTIS, supra note 55, at 11-13.
347. Id. at 273-74.
348. 101 U.S. 99 (1879).
349. See generally Pamela Samuelson, The Story of Baker v. Seiden: Sharpening the Distinction Between Authorship and Invention, in INTELLECTUAL PROPERTY STORIES, supra note 47, at 159 (describing the background and significance of Baker).
350. As Pamela Samuelson explains, the heart of the Baker decision was not identical to the modern idea/expression dichotomy. While the latter is based on the notion of levels of abstraction, Baker is premised on the principle that copyright does not extend to functional knowledge or subject matter. See Pamela Samuelson, Why Copyright Law Excludes Systems and Processes from the Scope of Its Protection, 85 TEX. L. REV. 1921 (2007). Despite this important distinction, for my purposes Baker and the idea/expression dichotomy are members of the same family of rules and cases that express the claim that copyright does not monopolize knowledge, information, or ideas.
351. Baker, 101 U.S. at 100-01.
352. Id. at 102.
353. Id. at 104.
354. 174 U.S. 82 (1899).
355. Id. at 86.
356. See, e.g., ROLAND BARTHES, THE FASHION SYSTEM 26 (Mathew Ward & Richard Howard trans., 1983) ("[A] system of signs is not founded on the relation of a signifier to a signified . . . but on the relation among the signifiera themselves . . . .);
357. FERDINAND DE SAUSSURE, COURSE IN GENERAL LINGUISTICS 113 (Charles Bally, Albert Sechehage & Albert Riedlinger eds., Roy Harris trans., 1986) ("A language is a system in which all the elements fit together, and in which the value of any one element depends on the simultaneous coexistence of all the others.").
358. See supra text accompanying notes 160-162.
359. McGiIl, supra note 199, at 28.
360. See Donaldson v. Beckett, (1774) 1 Eng. Rep. 837, 840 (H.L.) ("Public utility requires, that the productions of the mind should be diffused as wide as possible; and therefore the common law could not, upon any principle consistent with itself, abridge the right of multiplying copies.");
361. Information for John Robertson Printer in Edinburgh, Defender; Against John Mackenzie of Delvin Writer to the Signet, and Others, Surviving Trustees Appointed by the Widow of Mr Thomas Ruddiman, Late Keeper of the Advocate's Library in Edinburgh, for Behoof of the Daughter of the Said Mr Ruddiman and Her Husband, Pursuers (1771),
362. reprinted in THE LITERARY PROPERTY DEBATE: SEVEN TRACTS 1747-1773, at 11 (Stephen Parks ed., 1974) ("The diffusion of learning is a matter of general concern; and it might be a means of obstructing this, if any person who has bona fide acquired as his own property either a written or printed copy of a book, might not transcribe, print and circulate such book at his pleasure.");
363. Lord Camden, Speech to the House of Lords Regarding Donaldson v. Beckett (Feb. 22, 1774),
364. in 17 PARL. HIST. ENG. (1774) 999, 1001 ("If there be any thing in the world common to all man kind, science and learning are in their nature publici juris, and they ought to be as free and general as air or water" and "are not things to be bound in such cobweb chains.");
365. James Boswell, The Decision of the Court of Session upon the Question of Literary Property in the Cause Hinton against Donaldson, etc. (1774),
366. reprinted in THE LITERARY PROPERTY DEBATE: SIX TRACTS 1764-1774, at 25-26 (Stephen Parks ed., 1975).
367. (1769) 98 Eng. Rep. 201, 216 (K.B.).
368. 33 U.S. (8 Pet.) 591, 675 (1834).
369. See, e.g., Kalem Co. v. Harper Bros., 222 U.S. 55 (1911);
370. Nutt v. Nat'l Inst. Inc. for the Improvement of Memory, 31 F.2d 236 (2d Cir. 1929) ;
371. Dymow v. Bolton, 11 F.2d 690 (2d Cir. 1926);
372. London v. Biograph Co., 231F. 696 (2d Cir. 1916);
373. Stodart v. Mut. Film Corp., 249 F. 507 (S.D.N.Y. 1917);
374. Eichel v. Marcin, 241F. 404 (S.D.N.Y. 1913).
375. These cases would lead to the now-classic opinion of Judge Learned Hand in Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930).
376. Donaldson v. Beckett, (1774) 1 Eng. Rep. 837 (H.L.).
377. Wheaton, 33 U.S. (8 Pet.) 591.
378. ZBORAY, A FICTIVE PEOPLE, supra note 84, at 11.
379. The exclusive entitlement to dramatization was added to the Copyright Art in 1870. Act of July 8, 1870, ch. 230, § 86, 16 Stat. 198, 212. Some doubts as to the exact scope of die entitlement persisted, see DRONE, supra note 71, at 461-67, though these doubts were resolved by another statutory amendment in 1891, see Act of Mar. 3, 1891, ch. 565, 26 Stat. 1106.
380. See Kalem, 222 U.S. 55 (motion pictures);
381. White-Smith Music Publ'g Co. v. Apollo Co., 209 U.S. 1 (1908) (music embodied in perforated scrolls).
382. RICHARD OHMANN, SELLING CULTURE: MAGAZINES, MARKETS, AND CLASS AT THE TURN OF THE CENTURY 21 (1996).
383. Widespread claims that the novel sold millions of copies before the Civil War were recently challenged. See Michael Winship, The Greatest Book of Its Kind: A Publishing History of "Uncle Tom's Cabin," 109 PROC. AM. ANTIQUARIAN SOC'Y 309 (1999). There is no doubt, however, that the book was sold in unprecedented numbers in the American market.
384. See Homestead, supra note 154, at 203-04.
385. "[H]ardback sales of 100,000 copies and more became common in the 1890s." OHMANN, supra note 220, at 23-24.
386. Id. at 23.
387. LEHMANN-HAUPT, supra note 84, at 259-63.
388. OHMANN, supra note 220, at 23-24. Ohmann overstates the case somewhat by claiming that none of these developments appeared before the 1890s. This is unsurprising, given that the main argument of his book is that "mass culture" - a radically new phenomenon - appeared only in the 1890s.
389. See supra text accompanying notes 130-136.
390. CURTIS, supra note 55, at 237-38.
391. Folsom v. Marsh, 9 F. Cas. 342, 344 (Story, Circuit Justice, C.C.D. Mass. 1841) (No. 4901).
392. See supra text accompanying notes 176-182.
393. 23 F. Cas. 171 (McLean, Circuit Justice, C.C.D. Ohio 1847) (No. 13,497).
394. Id. at 173.
395. Id. at 173.
396. Id. at 173-73.
397. Id. at 173.
398. CURTIS, supra note 55, at 278.
399. Id.
400. See Bracha, supra note 27, at 178-83.
401. This shift left its mark in the Statute of Anne, the full title of which was "[a]n act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies, during the times therein mentioned." The preamble of the Act made a long reference to the goal of the "encouragement of learned men to compose and write useful books." 8 Ann., c. 19, pmbl. (1710).
402. On republicanism, see generally BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION (1967);
403. J.G.A POCOCK, THE MACHIAVELLIAN MOMENT: FLORENTINE POLITICAL THOUGHT AND THE ATLANTIC REPUBLICAN TRADITION (1975);
404. and GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787 (1969).
405. MICHAEL WARNER, THE LETTERS OF THE REPUBLIC: PUBLICATION AND THE PUBLIC SPHERE IN EIGHTEENTH-CENTURY AMERICA 63-67 (1990).
406. Id.
407. John Adams, A Dissertation on the Canon and the Feudal Law, in 1 PAPERS OF JOHN ADAMS 112 (Robert J. Taylor ed., 1977).
408. Id. at 113.
409. Michael D. Birnhack, The Idea of Progress in Copyright Law, 1 BUFF. INTELL. PROP. L.J. 3, 17-21 (2001).
410. CARL F. KAESTLE, PILLARS OF THE REPUBLIC: COMMON SCHOOLS AND AMERICAN SOCIETY 1780-1860, at 91-92 (1983).
411. See WARNER, supra note 239, at 4.
412. Birnhack, supra note 243, at 27-40.
413. KAESTLE, supra note 244, at 4-8, 78-81.
414. 1 TEBBEL, supra note 27, at 241.
415. Id. at 241-42.
416. ZBORAY, A FICTIVE PEOPLE, supra note 84, at 4-5.
417. J. PARTON, THE LIFE OF HORACE GREELEY, EDITOR OF THE NEW YORK TRIBUNE 137 (1855).
418. Id. at 138-39.
419. ZBORAY, A FICTIVE PEOPLE, supra note 84, at 5.
420. Id.
421. Of course, there was always the reconciling argument, which is still viable today, that by creating initial incentive copyright is, in fact, an "engine of free expression." See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985). Nevertheless, the new doctrinal and practical reality constituted a serious threat to the coherence between copyright and commitment to the ideal of the free and broad dissemination of information. The social cost of copyright that became more tangible and apparent had a double effect in this respect. First, there was the very realization that there is a cost to copyright protection. Second, given this realization, copyright threatened to become an amalgam of imperfect compromises that had a fragile and uncertain relation to its core ideal of progress, rather than a certain promise that, by definition, promoted that ideal.
422. Eichel v. Marcin, 241 F. 404, 409 (S.D.N.Y. 1913).
423. Later in the twentieth century, this sharp binary distinction between ideas and expression would be transformed into a blurry continuum. The seminal decision in this regard is Judge Learned Hand's opinion in Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930). The continuum approach continued to carry out the same ideological function as the binary distinction, albeit as characteristic of realist and post-realist American jurisprudence, with somewhat less assurance of precise lines discernable through technical procedures. While the old binary distinction mitigated the dissonance with the ideal of the free flow of ideas by implying that no ideas were monopolized, the new continuum approach did the same by suggesting a right balance point along the continuum-an objective and prudent way that allowed judges to split the difference between the contradictory principles of copyright.
424. CURTIS, supra note 55, at 13.
425. Eichel, 241 F. at 409.
426. See infra text accompanying note 266.
427. See infra text accompanying notes 271-278.
428. See generally Catherine L. Fisk, Authors at Work: The Origins of the Work-for-Hire Doctrine, 15 YALE J.L. & HUMAN. 1 (2003) (describing the development of the modern work-for-hire doctrine and the change of copyright ownership rules which resulted in an increased recognition of employers' ownership of employees' works).
429. See infra text accompanying notes 284-292.
430. Whether authors had any rights vis-à-vis stationers under this framework is a complex question. The common scholarly assertion that authors were completely ignored in the stationers' copyright regime is inaccurate. During the century and a half of pre-1710 copyright, there emerged social norms-backed by sporadic formal enforcement of the stationers' company-that created a measure of recognition of authors' entidement for compensation and, possibly, for some control over first publication. For a detailed discussion, see Bracha, supra note 27, at 158-69.
431. Id. at 252-57.
432. Act of May 31, 1790, ch. 15, § 1, 1 Stat. 124, 124 (repealed 1802).
433. Fisk, supra note 262, at 16-25.
434. Binns v. Woodruff, 3 F. Cas. 421 (Washington, Circuit Justice, C.C.D. Pa. 1821) (No. 1424).
435. The context of engraving was unique because such works were protected under separate language added to the copyright statute in 1802. The court's reasoning was grounded in that specific language, which referred to any person "who shall invent and design, engrave, etch or work, or from his own works and inventions, shall cause to be designed and engraved, etched or worked, any historical or other print or prints." Act of Apr. 29, 1802, ch. 36, § 2, 2 Stat. 171, 171 (repealed 1831).
436. Binns, 3 F. Cas. at 424.
437. Most of the early cases involved two fields in which employment or commission were common: law reporting and theatrical adaptations. See Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 667-68 (1834),
438. in which the court assumed that a reporter of the Supreme Court was the author and owner of his reports, unless he assigned his rights to a proprietor; Heine v. Appleton, 11 F. Cas. 1031 (C.C.S.D.N.Y. 1857) (No. 6324),
439. in which an artist who accompanied an expedition to Japan and the China sea was denied copyright in his drawings due to express assignment of his rights; and Little v. Gould, 15 F. Cas. 612 (Nelson, Circuit Justice, C.C.N.D.N.Y. 1852) (No. 8395), which found that an express assignment by both state legislation and specific contract vested initial copyright ownership not in the reporter but in the state of New York.
440. De Witt v. Brooks, 7 F. Cas. 575 (C.C.S.D.N.Y. 1861) (No. 3851);
441. Atwill v. Ferrett, 2 F. Cas. 195 (C.C.S.D.N.Y. 1846) (No. 640) (recognizing a theater manager who commissioned an opera adaptation as the copyright owner only due to his deep involvement in the creation process).
442. 19 F. Cas. 652 (Woodbury, Circuit Justice, C.C.D. Mass. 1846) (No. 11, 152).
443. Copyright duration at the time consisted of fourteen years and an additional term of fourteen years subject to renewal by the author. Act of May 31, 1790, ch. 15, $ 1, 1 Stat. 124, 124 (repealed 1802).
444. Pierpont, 19 F. Cas. at 659-60.
445. Id. at 660.
446. While it was customary for a map publisher to claim the copyright, the actual contribution of publishers to the creative process varied. It ranged between active involvement in the surveying and drafting to a mere supervisory role The answer to the crucial question of whether there existed express assignment from all the contributors to the creation of the map is somewhat obscure. There are, however, reasons to believe that often initial ownership by the publisher was simply assumed. See Fisk, supra note 262, at 26-31.
447. At least one case formally recognized that initial ownership of a map resided in the publisher, even in the absence of express assignment. Commonwealth v. Desilver, 3 Phila. 31 (D. Pa. 1858).
448. A quick look at the record of registered copyrights during the regime's early years shows that many of the persons who obtained initial copyright registrations were not the authors of the relevant works, but rather "proprietors." Throughout the decade, proprietors registered 46.6% of copyrights. B. ZORINA KHAN, THE DEMOCRATIZATION OF INVENTION: PATENTS AND COPYRIGHTS IN AMERICAN ECONOMIC DEVELOPMENT, 1790-1920, at 236 (2005).
449. This, however, does not necessarily mean that in the majority of these cases authors were simply ignored and others were the owners of the original rights. It is plausible that many of these cases involved pre-registration assignment by the author. In such cases, despite the formal initial registration to the proprietor, the author was the owner and beneficiary of the original right both in the formal-legal and the practical sense. Direct evidence on this issue is somewhat lacking. The main indication of a common practice of pre-registration assignment is that in most, although not all, of the cases in which copyright was registered for a proprietor, there was also an explicit reference in the record to the name of the author. Of course, there is a gap between mentioning the name of the author and insisting on authorial assignment before registration. The former, however, provides some indication. This issue will remain ambiguous until early copyright registration practice is reconstructed. See generally FEDERAL COPYRIGHT RECORDS, supra note 82 (transcribing federal copyright registrations from the first decade of the federal regime);
450. Felcone, supra note 82 (transcribing New Jersey copyright registrations from 1791 to 1845).
451. Boucicault v. Fox, 3 F. Cas. 977 (C.C.S.D.N.Y. 1862) (No. 1691).
452. A federal court in Massachusetts, deciding a case that involved the same dispute, was somewhat more ambiguous. While holding that the mere fact of employment as an actor and stage manager did not constitute assignment, it left open the hypothetical question of whether initial ownership would shift through a contract to write a play. Roberts v. Myers, 20 F. Cas. 898, 899 (CCD. Mass. 1860) (No. 11, 906).
453. 280.14 F. Cas. 180,186-87 (C.C.E.D. Pa. 1861) (No. 7644). The court found that the additions to the existing play were not copyrightable. Id. at 186-87.
454. Nevertheless, it decided that the plaintiff had equitable rights against third parties who procured the additions from her employee-actor who was the person who created them. Id.
455. Id. at 187.
456. Id. at 186.
457. 15 F. Cas. 26, 51 (Clifford, Circuit Justice, C.C.D. Mass. 1869) (No. 8136).
458. Id.
459. The allocation of ownership away from the author was dictum in this case because there existed an express contract in which the commissioning party agreed not to make further use of the work with no express authorization from the author. See Donaldson v. Wright, 7 App. D.C. 45, 58 (D.C. Cir. 1895) (denying a claim by a census compiler that he had an equitable right to prevent the publication by his governmental employer of a "mutilated" version of his work).
460. The court based its rejection of the employee's claim on "the nature of the work, and the well-understood power of supervision and control under which it was performed" and found that "[t]he power of revision, alteration and omission by the superior, was necessarily implied in the nature of the work performed by the subordinate." Id.
461. See Callaghan v. Myers, 128 U.S. 617, 647 (1888) (basing a reporter's copyright ownership in his reports on "a tacit assent by the government to his exercising such privilege");
462. Root v. Borst, 36 N.B. 814, 814 (N.Y. 1894) (inferring the author's ownership from the terms of employment).
463. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903);
464. Edward Thompson Co. v. Am. Law Book Co., 119 F. 217, 219-20 (C.C.S.D.N.Y. 1902);
465. Mut. Adver. Co. v. Refo, 76 F. 961, 963 (C.C.D.S.C. 1896);
466. Schumacher v. Schwencke, 25 F. 466, 468 (C.C.S.D.N.Y. 1885).
467. Nat'l Cloak & Suit Co. v. Kaufman, 189 F. 215 (C.C.M.D. Pa. 1911);
468. Dielman v. White, 102 F. 892 (C.C.D. Mass. 1900);
469. Colliery Eng'r Co. v. United Correspondence Sch., 94 F. 152, 153 (C.C.S.D.N.Y. 1899).
470. Dielman, 102 F. at 894.
471. Fisk, supra note 262, at 63.
472. 1 LEGISLATIVE HISTORY OF THE 1909 COPYRIGHT ACT 56 (E. Fulton Brylawski & Abe Goldman eds., 1976)
473. [hereinafter LEGISLATIVE HISTORY].
474. The discussion here brackets the question of the actual distributive effects of the work-for-hire doctrine. As John Witt explains, one cannot infer any specific actual distributive effects simply from a formal legal allocation of entitlements, especially when the relevant rule is a default rule around which parties can theoretically contract. See John Fabian Witt, Rethinking the Nineteenth Century Employment Contract, Again, 18 LAW & HIST. REV. 627, 635 (2000).
475. For the purposes of this Article, suffice it to say that shifting initial allocation to employers was a significant ideological change, whatever its actual distributive effects. That said, there seem to be compelling preliminary reasons to assume that initial ownership rules in this area were "sticky defaults" - rules that parties were less likely to consider and contract around ex ante. Thus, these rules were likely to be entitlements with substantial distributive effect. See Fisk, supra note 262, at 50-51.
476. Act of Mar. 4, 1909, ch. 320, § 62, 35 Stat. 1075, 1088.
477. In England, pre-1710 copyright was based on the guild apparatus and as a rule was limited to stationers-the publishers of the day. See Bracha, supra note 27, at 129-46.
478. A parallel protection mechanism was an ad hoc royal privilege of exclusivity, known as the printing patent. Although a few printing patents were granted to authors, the majority of them were issued to publishers or printers. See id. at 121-29.
479. In colonial America, the few known privilege grants were all issued to printers or publishers. See id. at 252-56.
480. See DAVID SAUNDERS, AUTHORSHIP AND COPYRIGHT 75-121 (1992).
481. In the German case, it seems that the strong consolidation of some authorial inalienable rights occurred in the second half of the twentieth century. Early twentieth-century German law placed fewer restrictions on alienability and even included a weaker and more limited version of the American work-for-hire doctrine. See JACQUELINE SEIGNETTE, CHALLENGES TO THE CREATOR DOCTRINE: AUTHORSHIP, COPYRIGHT OWNERSHIP AND THE EXPLOITATION OF CREATIVE WORKS IN THE NETHERLANDS, GERMANY AND THE UNITED STATES 30-31 (1994).
482. 6 W.S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 364, 378 (1924);
483. John Feather, From Rights in Copies to Copyright: The Recognition of Authors' Rights in English Law and Practice in the Sixteenth and Seventeenth Centuries, in THE CONSTRUCTION OF AUTHORSHIP, supra note i, at 191,197-99;
484. Bracha, supra note 28, at 171-72.
485. See Bracha, supra note 27, at 373-78.
486. See supra text accompanying notes 48-55.
487. Another possibility, as suggested by Catherine Fisk, is that it was mainly the peculiar facts of those few cases that most influenced their outcomes. See Fisk, supra note 262, at 7-8.
488. Woodmansee, supra note 4, at 426-27.
489. This function of implied intent in the copyright context had a very similar structure to what Duncan Kennedy saw as the central role of implied intent in "pre-classical" American private law. According to Kennedy, the implied intent construct was frequently used in antebellum private law in a way that blurred the distinction between public government-imposed decisions and private individual choices. KENNEDY, supra note 144, at 157. Interestingly, like other legal concepts, implied intent flourished in the copyright context at a time when it was already in sharp decline in other doctrinal areas.
490. DRONE, supra note 71, at 255.
491. Id. at 257.
492. Id.
493. Id. at 258.
494. Id. at 259-60.
495. See generally ALAN TRACHTENBERG, THE INCORPORATION OF AMERICA: CULTURE AND SOCIETY IN THE GILDED AGE (1982) (describing the social and cultural implications of the rise of the modern business corporation in America).
496. Thus, in the discussions leading to the 1909 statutory work-for-hire doctrine, the initial objection to the proposed rule by Robert Underwood Johnson on behalf of the American Authors' Copyright League was based solely on the use of the term "author" in relation to employers. Johnson thought that an employer "ought to be considered the proprietors and not the author." See 1 LEGISLATIVE HISTORY, supra note 290, at 56-57. Depriving employees of ownership in works they created was never an issue. It was only too easy to classify such employees out of the privileged group of authors worthy of protection.
497. Edward Thompson Co. v. Am. Law Book Co., 119 F. 217, 218-19 (C.C.S.D.N.Y. 1902).
498. Id. at 219.
499. W.M. Geldart, Legal Personality, 27 LAW Q. REV. 90, 97 (1911) (emphasis omitted).
500. HORWITZ, supra note 130, at 94-100.
501. 119 F. 294 (7th Cir. 1902).
502. Id. at 297.
503. Id. at 300-01.
504. Id. at 301.
505. It is important to notice that the National Telephone News Co. court, despite its criticism of authorship as an anachronism, was not willing to purge it out of copyright law. Rather, it tried to create a new body of law, external to copyright law, which would not be bound by such requirements.
506. Jaszi, supra note 4, at 488-89.
507. 25 F. 466 (C.C.S.D.N.Y. 1885).
508. Id. at 468.
509. Similarly, the copyright owner in Bleistein, in which Justice Holmes rhetorically used the figures of the great masters, was a corporation. Bleistein v. Donaldson Lithiographing Co., 188 U.S. 239 (1903);
510. see supra text accompanying notes 151-152.
511. See Gerald E. Frug, The Ideology of Bureaucracy in American Law, 97 HARV. L. REV. 1276, 1297-98 (1984) (using the analogy of the machine or the mechanical extension to describe theories of agency).
512. Schumacher, 25 F. at 468.
513. My claim that the use of authorship rhetoric in Schumacher is perverse is not based on the assumption that the creative process never involves a "division of labor" that allocates the crucial creative role to the designer rather than to the person who produces a physical object embodying the design. It is based on two other arguments. First, even assuming that in the circumstances of the case the corporation's president played the crucial creative role and the employee's role was limited to mechanical execution, the decision did not vest the ownership in the president but in the corporation. One way or another, the court used authorship rhetoric in order to vest ownership in an entity different from the actual creator or creators, a fact that is unaltered by the legal fiction of identifying managerial actions with those of the corporation. Second, and admittedly more speculatively, reading the Schumacher opinion leaves one with a strong impression that, at least in part, the metaphor shaped the court's view of the roles of the contributors to the creative process. In other words, it seems plausible that the court's predisposition to see the employee as the mechanical extension of the corporation helped to shape its assessment of the relative importance of the creative contributions by the president and the employee.
514. Act of Mar. 4, 1909, ch. 320, § 62, 35 Stat. 1075, 1087-88.
515. Richard Bowker, for example, explained in this context that [w]e notice the practical value particularly in this way, if you always have the word "author" in the law and then provide that that author, no matter of what class, should become the copyright proprietor when he has satisfied the conditions that we make. In other words, everybody is an author, and the author or his legal representative or his assign acting in the name of the author becomes the copyright proprietor, and so on for all other provisions of the art . . . . [I]nstead of the many provisions providing for what I will call subsidiary authorship, the word "author" should be defined in a single section, which should be absolutely comprehensive. 2 LEGISLATIVE HISTORY, supra note 290, at 143.
516. 1 LEGISLATIVE HISTORY, supra note 290, at 54.
517. Id. at 56.
518. The doubts were raised by Charles Scribner, representing the American Publishers' Copyright League. At that stage of the drafting process, the term "author" was not yet extended to every employer, but rather to specific categories such as periodical publishers. 2 LEGISLATIVE HISTORY, supra note 290, at 146.
519. Id.
520. Lemley, supra note 26, at 882.
521. See id. at 882-86.
522. Id. at 902.
523. For an argument that the abstract aesthetic theory of original authorship was not fully adopted even by eighteenth-century English copyright law, see Simon Stern, Copyright, Originality, and the Public Domain in Eighteenth-Century England, in ORIGINALITY AND I NTELLECTUAL PROPERTY IN THE FRENCH AND ENGLISH ENLIGHTENMENT (Reginald McGinnis ed., forthcoming 2008).
524. I do not mean to claim that the story of authorship in copyright was over by 1900-a mistake that I have accused some of the existing accounts of copyright history of making. I only mean to say that by that time, many of the features of the contemporary notion of authorship in copyright law had appeared. This is not meant to foreclose the possibility of further changes during the ensuing century.
525. See 17 U.S.C. § 201(b) (2000) (establishing the work-for-hire doctrine);
526. id. § 101 (defining a "work made for hire").
527. See supra text accompanying notes 289-299.
528. See supra text accompanying notes 49-55.
529. See Feist Publ'ns v. Rural Tel. Serv. Co., 499 U.S. 340, 352-60 (1991).
530. See 17 U.S.C. §§ 103(a), 106(3).
531. Emerson v. Davies, 8 F. Cas. 615, 619 (Story, Circuit Justice, C.C.D. Mass. 1845) (No. 4436).
532. DRONE, supra note 71, at 464.
533. See supra text accompanying notes 172-182.
534. See, e.g., 17 U.S.C. §§ 102(b), 107.
535. On ideology as a social construct, see TERRY EAGLETON, IDEOLOGY: AN INTRODUCTION 28 (1991).
536. For a critical description of the notion of ideology as false consciousness, see id. at 10-24.
537. Jaszi & Woodmansee, supra note 21, at 3-4.
538. See BOYLE, supra note 4, at 157-58 (criticizing the claim that authorship is a mere insignificant rhetoric which is not believed by anyone).
539. In the extreme case of the work-for-hire doctrine, copyright law avoids even the most basic principle that follows from an authorship-based justification, namely ownership by authors.
540. E.P. THOMPSON, WHIGS AND HUNTERS: THE ORIGIN OF THE BLACK ACT 265 (1975).
541. Thompson made those observations in regard to the notion of the rule of law as it developed in eighteenth-century English criminal law, but it seems just as applicable to our context. For a critical treatment of Thompson's view, see Morton J. Horwitz, The Rule of Law: An Unqualified Human Good?, 86 YALE L.J. 561 (1977) (book review).
542. Horwitz's criticism applies not so much to Thompson's observation on the dual nature of the ideology of the rule of law as to his further inference that the rule of law is "an unqualified human good." THOMPSON, supra, at 266.
543. See Jaszi, supra note 4, at 501 ("Romantic 'authorship' and its connotations are deeply embedded in legal consciousness and... this belief sometimes expresses itself in ways that are inconvenient, to say the least, for the commerce of intellectual property.").
544. Feist Publ'ns Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).
545. See generally Jane C. Ginsburg, No "Sweat"? Copyright and Other Protection of Works of Information After Feist v. Rural Telephone, 92 COLUM. L. REV. 338 (1992) (discussing the effect of the Supreme Court's interpretation of the originality requirement on copyright protection for informational works such as factual databases or directories).
546. See John Dewey, The Historical Background of Corporate Legal Personality, 35 YALE L.J. 655 (1926).
547. See ROBERTO MANGABEIRA UNGER, KNOWLEDGE AND POLITICS 18 (1975) ("[T]hrough its workings on our self-consciousness, the practice of total criticism itself may work toward the revision of the moral sentiments and the reorientation of politics.").
548. See, e.g., BOYLE, supra note 4, at 169;
549. James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, LAW & CONTEMP. PROBS., Winter/Spring 2003, at 33, 51-52;
550. Fisher, supra note 43, at 277-84;
551. Lange, supra note 4, at 143.
552. Regrettably, authorship scholarship tends to ignore the question or to lapse into vague metaphors. See, e.g., Lange, supra note 4, at 151 ("[A]uthorship in the form of creative play will flourish . . . not in the anonymity of a murmur, but as if in moments between lovers exchanging gifts.").
553. I thank Mark Rose for helping me see this important point.