Property is a two-way street: Personal copyright use and implied authorization

Fordham Law Review

Volumn 79, Issue 2, 2010, Pages 435-498

  Grynberg, Michael ^a  

^a OKLAHOMA CITY UNIVERSITY   (United States)

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EID: 78650018104     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (540)

1. For the sake of argument, anyway. But see infra note 127 and accompanying text.
2. See, e.g., 17 U. S. C. § 201 (d) (2006) ("The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession. ");
3. U. S. C. § 261 ("Subject to the provisions of this title, patents shall have the attributes of personal property."). The label intellectual "property" is itself controversial because it carries the rhetorical implication that patents, copyrights, and their like deserve treatment as property in the same way as do land and personal property. For that reason, opponents of strong intellectual property (IP) rights often favor different nomenclatures.
4. See, e.g., MlCHELE BOLDRIN & DAVID K. LEVINE, AGAINST INTELLECTUAL MONOPOLY (2008);
5. Tom W. Bell, Copyright as Intellectual Property Privilege, 58 SYRACUSE L. REV. 523 (2008). A number of articles discuss restrictions imposed by IP holders on the objects embodying their protected right as being a form of servitude.
6. See Mark D. Janis, A Tale of the Apocryphal Axe: Repair, Reconstruction, and the Implied License in Intellectual Property Law, 58 MD. L. REV. 423, 506 n. 479 (1999) (collecting sources). Although I note analogous examples in developing my theory of implied authorization
7. see, for example, infra notes 159-61 and accompanying text, my focus is elsewhere. This Article focuses on the manner in which IP law regulates not property that embodies protected content, but personal property used to interact with such content. My interest is in the record player, not the record.
8. See 15 U. S. C. §§ 1114, 1125 (trademarks);
9. U. S. C. § 106 (copyrights);
10. U. S. C. § 271 (patents).
11. See infra Part II. A.
12. See, e.g., John Tehranian, Infringement Nation: Copyright Reform and the Law/Norm Gap, 2007 UTAH L. REV. 537, 543-48 (describing a hypothetical day in the life filled with ordinary activities that collectively incur $12.45 million in potential liability under the Copyright Act).
13. Compare, e.g., Recording Indus. Ass'n of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d 1072, 1079 (9th Cir. 1999)
14. (comparing space shifting to time shifting blessed in Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417 (1984))
15. with UMG Recordings, Inc. v. MP3. Com, Inc., 92 F. Supp. 2d 349, 351 (S. D. N. Y. 2000) (rejecting space shifting argument applied to My. MP3.com as "simply another way of saying that the unauthorized copies are being retransmitted in another medium-an insufficient basis for any legitimate claim of transformation") - And those of us who are sure are not necessarily sure as to why.
16. See Jessica Litman, Billowing White Goo, 31 COLUM. J. L. & ARTS 587, 597 (2008) [hereinafter Litman, Goo];
17. Jessica Litman, Lawful Personal Use, 85 TEX. L. REV. 1871, 1903 (2007) [hereinafter Litman, Lawful Personal Use] (noting that were many personal uses to be challenged, "[cjopyright lawyers may disagree on what theory the copyright owner should lose, but not about the ultimate result").
18. See infra Part LA.
19. See infra Part LA.
20. This Article uses Jessica Litman's definition of personal use. A personal use is "a use that an individual makes for herself, her family, or her close friends." Litman, Lawful Personal Use, supra note 6, at 1894.
21. See generally Boosey & Hawkes Music Publishers, Ltd. v. Walt Disney Co., 145 F.3d 481 (2d Cir. 1998) (litigating whether a 1939 music license allowing use of composition in film also authorized use in video version of the film).
22. See infra Part I. A.2.
23. 17 U. S. C. § 107 (2006).
24. See Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 577 (1994) ("The task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis.").
25. See infra Part I. C.
26. See infra Part I. C.2.
27. 17 U. S. C. § 106.
28. See infra Part II. A.
29. See infra Part II. E.
30. See, e.g., Litman, Goo, supra note 6, at 591-96.
31. Two key milestones are the 1976 revision of the Copyright Act, Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541
32. and the addition in 1972 of a distinct copyright in sound recordings, rather than simply in the musical composition. Act of Oct. 15, 1971, Pub. L. No. 92-140, 85 Stat. 391.
33. The 1976 Act reduced the importance of copyright formalities by liberalizing the requirement that a copyright holder affix a notice of copyright on her work. Copyright Act of 1976, Pub. L. No. 94-553, § 405, 90 Stat. 2541.
34. Congress later dispensed with the requirement altogether, Act of Oct. 31, 1988, Pub. L. No. 100-568, 102 Stat. 2853
35. and opened the door for foreign authors to reclaim U. S. copyright to works that were unprotected due to a failure to adhere to domestic formalities. 17 U. S. C. § 104A.
36. The 1976 Act further liberalized copyright law by providing that copyright subsists "in original works of authorship fixed in any tangible medium of expression. " 17 U. S. C. § 102 (a). Under the predecessor 1909 Act, copyright extended only to works published with proper notice.
37. Act of Mar. 4, 1909, Pub. L. No. 60-349, 35 Stat. 1075
38. (codified as amended at 17 U. S. C. § 9 (1909), renumbered § 10, repealed 1978). The 1976 statute also eliminated the distinction between published works, which received federal protection, and unpublished works, which until then had not.
39. The 1976 Act added a new right of public display and defined public performance broadly enough to supersede a narrow construction given the right by the U. S. Supreme Court. See Litman, Goo, supra note 6, at 592 n. 35;
40. infra Part III. D.1.b.
41. Under the 1909 Act, the copyright term lasted twenty-eight years and could be renewed for an additional twenty-eight years. 17 U. S. C. § 24 (1909) (repealed 1978). The 1976 Act extended the term to the life of the author plus fifty years or, in the case of works for hire, the shorter of seventy-five years from publication or 100 years from creation. 90 Stat. 2541.
42. In 1998, Congress further extended the term to the life of the author plus seventy years or the shorter of ninety-five years from publication or 120 years from creation in the case of works made for hire. Pub. L. No. 105-298, Title I, § 102 (b), 112 Stat. 2827
43. (codified as amended at 17 U. S. C. § 302 (2006)).
44. The Digital Millennium Copyright Act (DMCA) proscribed the unauthorized circumvention of technological measures designed to control access to copyrighted works and restricted the development and distribution of tools designed to circumvent technological measures that control access or protect copyright rights held by the copyright owner. 17 U. S. C. § 1201. Critics contend the statute interferes with the ability of users to engage in fair and otherwise legal uses of copyrighted content.
45. See, e.g., Unintended Consequences: Ten Years Under the DMCA, ELEC. FRONTIER FOUND., 6 (Oct. 28, 2008), http://www.eff.org/files/DMCAUnintended10. pdf.
46. See, e.g., 17 U. S. C. § 110 (precluding copyright rights over performance and display from applying to certain activities). Professor Litman notes that in revising the copyright statute, Congress generally sought to preserve the status quo with respect to established copyright uses with specific carveouts of the sort found in § 110.
47. See Litman, Goo, supra note 6, at 591-96.
48. Litman, Goo, supra note 6, at 593 ("Congress's rewording of the reproduction, adaptation and distribution rights were understood as simplification and codification of the scope of those rights under the law as construed by the courts, and not as enhancements of their reach or strength.").
49. 17 U. S. C. § 106.
50. Some of these terms are defined elsewhere in the statute, but broadly.
51. See 17 U. S. C. § 101 (defining "derivative work" as "a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted') (emphasis added).
52. Compare Mirage Editions, Inc. v. Albuquerque A. R. T. Co., 856 F.2d 1341, 1343-44 (9th Cir. 1988)
53. (concluding that lawfully purchased prints that were glued onto tiles and resold constituted derivative works), with Lee v. A. R. T. Co., 125 F.3d 580, 583 (7th Cir. 1997) (disagreeing with Mirage on similar facts).
54. 17 U. S. C. § 107;
55. see infra Part I. B. I.
56. Litman, Goo, supra note 6, at 593 ("By articulating exclusive rights in general, broad language and delineating exceptions in narrow, detailed, specific language, the drafters of the statute time-proofed the exclusive rights, while leaving the specific exceptions vulnerable to obsolescence.") .
57. Professor Litman traces the mismatch to the process behind the statute's drafting, describing it as a negotiation between industry interests. Jessica Litman, Copyright Legislation and Technological Change, 68 OR. L. REV. 275, 280-81 (1989).
58. Compare 17 U. S. C. § 101 ("To 'perform' a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.")
59. with id. § 110.
60. See, e.g., id. § 110 (5) (B) (setting size and device limits for establishments permitted to communicate transmissions made by broadcast or radio);
61. id. § 110 (10) (exempting performances of nondramatic literary or musical works "in the course of a social function which is organized and promoted by a nonprofit veterans' organization or a nonprofit fraternal organization to which the general public is not invited" if the proceeds are used for charitable purposes). To be sure, other provisions of section 110, applying to personal users, are somewhat broader.
62. See, e.g., id. § 110 (5) (A).
63. See id. §§ 108-22.
64. Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008)
65. cert. denied, 129 S. Ct. 2890 (2009).
66. Id. at 124 ("[T]he RS-DVR allows Cablevision customers who do not have a standalone DVR to record cable programming on central hard drives housed and maintained by Cablevision at a 'remote' location. "). They did so even though consumer experience of the service resembled that provided by home-based DVRs like TiVO, which, in tum, arguably resemble the VCR approved by the Supreme Court in Sony, but the fair use issue was off the table as was a theory of contributory infringement.
67. Id.
68. Id. at 133 ("[C]opies produced by the RS-DVR system are 'made' by the RS-DVR customer, and Cablevision's contribution to this reproduction by providing the system does not warrant the imposition of direct liability.").
69. Id. at 130 ("[W]orks in this case are embodied in the buffer for only a 'transitory' period, thus failing the duration requirement.");
70. id. at 139 ("Because each RS-DVR playback transmission is made to a single subscriber using a single unique copy produced by that subscriber, we conclude that such transmissions are not performances 'to the public,' and therefore do not infringe any exclusive right of public performance.").
71. Cf. id. at 134 ("[W]e note that our conclusion... that the customer, not Cablevision, 'does' the copying does not dictate a parallel conclusion that the customer, and not Cablevision, 'performs' the copyrighted work.");
72. see also David Nimmer, Brains and Other Paraphernalia of the Digital Age, 10 HARV. J. L. & TECH. 1, 26 (1996). Current litigation over the sale of ringtones is another example of attempts to leverage the Copyright Act's multiplicity of rights.
73. See generally In re Cellco P'ship, 663 F. Supp. 2d 363 (S. D. N. Y. 2009) (rejecting argument that distribution of ringtones to customers results in a public performance requiring licensing fees). This multiplicity, moreover, creates significant licensing issues when the various copyright rights are fragmented among multiple owners.
74. 17 U. S. C. § 1201 (2006);
75. Universal City Studios, Inc. v. Corley, 273 F.3d 429, 443 (2d Cir. 2001).
76. See generally Realnetworks, Inc. v. DVD Copy Control Ass'n, 641 F. Supp. 2d 913 (N. D. Cal. 2009) (granting preliminary injunction against distribution of DVD copying software).
77. See, e.g., Endangered Gizmos, ELEC. FRONTIER FOUND., http://w2.eff.org/ endangered (last visited Oct. 23, 2010).
78. I have argued elsewhere that a similar problem exists in trademark law under the Lanham Act.
79. See Michael Grynberg, Things Are Worse Than We Think: Trademark Defenses in a "Formalist" Age, 24 BERKELEY TECH. L. J. 897, 903-24 (2009).
80. I WILLIAM F. PATRY, PATRY ON COPYRIGHT § 2:8 (2009).
81. Pierre N. Leval, Trademark: Champion of Free Speech, 27 COLUM. J. L. & ARTS 187, 198 (2004).
82. See infra Part I. B. I.
83. Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HARV. J. L. & PUB. POL'Y 61, 68 (1994) ("Sometimes Congress specifies values or ends, things for the executive and judicial branches to achieve, but often it specifies means, creating loopholes but greater certainty.");
84. Frank H. Easterbrook, Statutes' Domains, 50 U. CHI. L. REV. 533, 546-47 (1983) (arguing that courts must respect legislative choices with respect to "creating or withholding gap-filling authority").
85. Litman, Goo, supra note 6, at 596 ("Thirty years ago, an assertion that copyright law gave the copyright owner the exclusive right to 'use' its copyrighted work would have been dismissed as an obvious misunderstanding. Recently, it's become almost respectable as a description of the rights copyright owners do control, or should."
86. (citing ALAN LATMAN, STUDY NO. 14: FAIR USE OF COPYRIGHTED WORKS (1958)
87. reprinted in 2 COPYRIGHT SOCIETY OF THE USA, STUDIES ON COPYRIGHT 781 (1963))).
88. See MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 519 (9th Cir. 1993) (holding that a copy is created for purposes of the Copyright Act when a program is loaded from a disc into a computer's RAM in order to operate the program).
89. See supra note 28.
90. Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199, 203 (4th Cir. 1997) (stating that "[w]hen a public library adds a work to its collection, lists the work in its index or catalog system, and makes the work available to the borrowing or browsing public, it has completed all the steps necessary for distribution to the public" even if no evidence of public use exists).
91. The music industry has made similar arguments in pursuing defendants who have uploaded music files into the "shared" folder of file sharing programs, but where evidence is lacking of actual copies made as a result. Litman, Goo, supra note 6, at 595 n. 59.
92. For example, the Third Circuit found a "public" performance where a video store made available to customers private booths for viewing rented cassettes. Columbia Pictures Indus., Inc. v. Aveco, Inc., 800 F.2d 59, 63-64 (3d Cir. 1986).
93. Interpretation of the DMCA is another example. The statute provides that it shall not be construed to limit fair use rights. 17 U. S. C. § 1201 (c) (1) (2006).
94. Some courts have nonetheless concluded that the statute's protection of "access-control" measures do not run afoul of that limitation, even if the purpose of the circumvention is the exercise of fair use rights. Universal City Studios, Inc. v. Corley, 273 F.3d 429, 443 (2d Cir. 2001) ("[1201 (c) (1)] simply clarifies that the DMCA targets The circumvention of digital walls guarding copyrighted material (and trafficking in circumvention tools), but does not concern itself with the use of those materials after circumvention has occurred.");
95. id. at 459 ("Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user's preferred technique or in the format of the original.").
96. See, e.g., A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001);
97. Litman, Lawful Personal Use, supra note 6, at 1913-14 ("If any use that allows a person to get for free something she would otherwise need to pay for is a commercial one... then most lawful unlicensed uses would be commercial.").
98. Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 799-805 (6th Cir. 2005) (interpreting the Copyright Act's limitation on the scope of the sound recording copyright as a reason for giving owner of a sound recording copyright the exclusive right to sample the work).
99. See, e.g., Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121, 131 (2d Cir. 2008) (concluding cable company operator of off-site DVRs was not directly liable for creation of copies ordered by customers because "volitional conduct is an important element of direct liability")
100. cert, denied, 129 S. Ct. 2890 (2009).
101. See, e.g., James Gibson, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale L. J. 882, 887-95 (2007).
102. U. S. CONST, art. I, § 8, cl. 8;
103. see, e.g., MICHELE BOLDRIN & DAVID K. LEVINE, AGAINST INTELLECTUAL MONOPOLY 7 (2008). Copyright skepticism predates the 1976 Act.
104. See, e.g., Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 HARV. L. REV. 281, 284 (1970) ("Taken as a whole, the evidence now available suggests that, although we should hesitate to abolish copyright protection, we should equally hesitate to extend or strengthen it.").
105. See, e.g., Rebecca Tushnet, Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 Yale L. J. 535 (2004).
106. See Tehranian, supra note 5, at 543-48.
107. Though it bears noting that the RIAA's litigation campaign targeted a large number of downloaders. Nate Anderson, Has the RIAA Sued 18, 000 People... or 35, 000?, ARS TECHNICA (July 8, 2009, 2:50 PM), http://arstechnica.com/tech- policy/news/2009/07/hasthe-riaa-sued-18000-people-or-35000.ars. And sometimes the wrong target is hit.
108. See, e.g., Nate Anderson, Using Faulty Data to Demand Settlements from Innocent Surfers, ARS TECHNICA (Nov. 30, 2009, 7:22 PM), http://arstechnica.com/ tech-policy/news/2009/11/using-faulty-data-to-demand-settlements-from-innocent- surfers.ars.
109. Steven Marks, RIAA Responds: Nesson More like P. T. Barnum than David, ARS TECHNICA (May 31, 2009, 11:30 PM), http://arstechnica.com/tech-policy/news/ 2009/05/riaaresponds.ars (op-ed by Recording Industry Association of America general counsel arguing that litigation against file sharers has lost money).
110. But see Nate Anderson, The RIAA? Amateurs. Here's How You Sue 14, 000+ P2P Users, ARS TECHNICA, http://arstechnica.com/tech-policy/news/2010/06/the- riaa-amateurs-heres-how-you-sue-p2pusers.ars (last updated June 2010) (describing pursuit of copyright litigation as business model of "the US Copyright Group, a set of lawyers who have turned P2P prosecution into revenue generation").
111. See infra note 90 and accompanying text. And, of course, rights holders have an incentive to resist litigation declaring a user's rights ex ante.
112. See, e.g., Shloss v. Sweeney, 515 F. Supp. 2d 1068, 1080-82 (N. D. Cal. 2007) (rejecting copyright holder's motion to dismiss author's action seeking declaratory judgment that planned use of copyrighted materials would be legal);
113. Edelman v. N2H2, Inc., 263 F. Supp. 2d 137, 137-39 (D. Mass. 2003) (holding that plaintiff who sought declaration of right to reverse engineer Internet blocking software lacked standing).
114. Litman, Lawful Personal Use, supra note 6, at 1920 (arguing that even if unenforced, an expansive view of the statute is distortive because it "encourages copyright owners to expect too much, and.... snookers judges into reinterpreting the language of the statute to give effect to the perceived intent of Congress, expanding copies to include RAM copies, and commercial uses to include any use a copyright owner might otherwise charge for" (footnotes omitted)).
115. See generally Sony Corp. of Am. v. Universal City Studios, Inc., 464 U. S. 417 (1984).
116. See, e.g., UMG Recordings, Inc. v. Veoh Networks Inc. 665 F. Supp. 2d 1099, 1100-04 (CD. Cal. 2009);
117. Endangered Gizmos, ELEC. FRONTIER FOUND., http://w2.eff.org/endangered/ (last visited Oct. 23, 2010). Most prominently, YouTube is in litigation with copyright holders as to whether it does enough to prevent the uploading of infringing content.
118. See Am. Library Ass'n v. FCC, 406 F.3d 689, 705-08 (D. C. Cir. 2005) (striking down FCC's broadcast flag regulation);
119. Matthew Lasar, Warner Video Shows Hollywood Doesn't Need HDTV Blocking, ARS TECHNICA (Nov. 5, 2009, 2:11 PM), http://arstechnica.com/telecom/news/2009/ 11/warner-video-shows-hollywood-doesnt-needhdtv-blocking.ars (describing movie industry efforts to obtain authority to block analog outputs of home electronic devices).
120. See, e.g., Eric Bangeman, Schools Take Wait-and-See Approach After Ohio U Bans P2P Traffic, ARS TECHNICA (Apr. 27, 2007, 12:31 AM), http://arstechnica. com/techpolicy/news/2007/04/schools-take-wait-and-see-approach-after-ohio-u- bans-p2p-traffic.ars (reporting on Ohio State University's decision to ban file sharing programs after RIAA identified the school as a leading site for copyright infringement).
121. See, e.g., Nate Anderson, Deep Packet Inspection Under Assault over Privacy Concerns, ARS TECHNICA (May 12, 2008, 1:03 PM), http://arstechnica.com/ old/content/2008/05/deep-packet-inspection-under-assault-fromcanadian-critics. ars (discussing privacy and net neutrality concerns surrounding deep packet inspection technology).
122. See MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 519 (9th Cir. 1993) (holding that a copy is created for purposes of the Copyright Act when a program is loaded from a disc into a computer's RAM in order to operate the program).
123. *4 (N. D. Tex. Jan. 9, 2007) (finding violation of performance right where defendant provided an "unauthorized 'link' to... live webcasts").
124. See, e.g., Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159-62 (9th Cir. 2007) (discussing display right in Internet context).
125. The DMCA provides procedures for a copyright holder to obtain a subpoena to force an Internet Service Provider to give identifying information regarding alleged infringers. 17 U. S. C. § 512 (h) (2006). And the music industry has used services that connect to peer-topeer networks to search for Internet Protocol addresses of the hosts of protected material. These addresses then become the basis of subpoenas.
126. See, e.g., Nate Anderson, Thomas Judge Bars Fair Use Defense, OKs MediaSentry Evidence, ARS TECHNICA (June 11, 2009, 5:12 PM), http://arstechnica.com/tech-policy/news/2009/06/thomas-judge-bars-fair- usedefense-oks-mediasentry-evidence.ars;
127. Nate Anderson, MediaSentry Weighed in the Balance, Found Wanting, ARS TECHNICA (Mar. 5, 2009, 5:25 AM), http://arstechnica.com/tech-policy/news/2009/ 03/mediasentry-weighed-in-the-balance-found-wanting.ars;
128. Eric Bangeman, Marshall University Fails to Block RIAA 's P2P Subpoenas, ARS TECHNICA (Apr. 16, 2008, 7:15 AM), http://arstechnica.com/tech-policy/news/ 2008/04/marshall-universityfails-to-block-riaas-p2p-subpoenas.ars.
129. See, e.g., Eric Bangeman, DirecTV DVR Clampdown: A Sober Reminder of DRM Suckitude, ARS TECHNICA (Mar. 20, 2008, 8:27 PM), http://arstechnica.com/old/ content/2008/03/directv-dvr-clampdown-a-sober-reminder-ofdrm-suckitude.ars (reporting that subscribers to DVR service were advised that functionality of DVRs would be compromised so that recorded pay-per-view movies would become unwatchable after twenty-four hours).
130. See, e.g., Nate Anderson, "Fair Use" Generates Trillions in the US Alone, ARS TECHNICA, http://arstechnica.com/tech-policy/news/2010/04/fair- use-generates-trillions-inthe-us-alone.ars (last updated April 2010);
131. Julian Sanchez, 750, 000 Lost Jobs? The Dodgy Digits Behind the War on Piracy, ARS TECHNICA (Oct. 7, 2008, 11:30 PM), http://arstechnica.com/tech- policy/news/2008/10/dodgy-digits-behind-the-war-on-piracy.ars.
132. *1 (CD. Cal. Mar. 9, 2005) (litigation over computer game allowing users to create and play with superhero characters that alleged that resulting characters infringed copyrights). This is not to say that kids shouldn't get out more.
133. Litman, Lawful Personal Use, supra note 6, at 1877 (cautioning that after its victory over Grokster, the record industry increased efforts to halt CD burning while "both the motion picture industry and the recording industry seek laws requiring consumer electronics companies to incorporate copy prevention technology into digital televisions and radios. Thus, the effort to capture control over personal uses is moving further and further into consumers' homes.").
134. See id. at 1883-93 (describing cases protecting user copyright liberties).
135. Id. at 1872 ("Every time a study of copyright law queries the scope of lawful personal use, it concludes that the answer to the question whether any particular personal use is lawful is indeterminate.");
136. id. at 1897-98 (describing routine personal uses in which author and her circle engage and noting their ambiguous legal status).
137. A third possibility, invoking the First Amendment, is difficult insofar as the Supreme Court has generally taken the view that the fair use doctrine in conjunction with limitations on copyrightable subject matter provides a built-in safeguard against copyright's intruding on free speech.
138. See Eldred v. Ashcroft, 537 U. S. 186, 221 (2003) ("[W]hen... Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.").
139. But see Golan v. Gonzales, 501 F.3d 1179, 1192-94 (10th Cir. 2007) (concluding that restoration of copyright in certain foreign works required First Amendment scrutiny);
140. Golan v. Holder, 609 F.3d 1076, 1090-94 (10th Cir. 2010) (concluding that restoration survives intermediate scrutiny).
141. 17 U. S. C. § 107 (2006).
142. H. R. REP. No. 94-1476, at 65 (1976)
143. reprinted in 1976 U. S. C. C. A. N 5659, 5679 ("Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no generally applicable definition is possible....");
144. see also Folsom v. Marsh, 9 F. Cas. 342, 344 (C. C. D. Mass. 1841) (Story, J.) (No. 4, 901) ("This is one of those intricate and embarrassing questions... in which it is not, from the peculiar nature and character of the controversy, easy to arrive at any satisfactory conclusion, or to lay down any general principles applicable to all cases.").
145. Calling the defense "equitable" raises some hackles. Compare Time Inc. v. Bernard Geis Assocs., 293 F. Supp. 130, 144 (S. D. N. Y. 1968) (characterizing fair use as "entirely equitable")
146. with 4 PATRY, supra note 43, § 10:3 ("Fair use is not an equitable doctrine or an equitable defense. As history reveals, it is a legal defense which may, and frequently is, decided by a jury...." (footnotes omitted)).
147. H. R. REP. No. 94-1476, at 66
148. reprinted in 1976 U. S. C. C. A. N. at 5680 ("[TJhere is no disposition to freeze the doctrine-Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis.").
149. "[I]f we limit our conversation to a room full of copyright lawyers and copyright scholars, fair use remains a doctrine that permits a relatively narrow swathe of exceptional, rather than everyday, uses." Litman, Goo, supra note 6, at 590-91.
150. The divergence of scholarly opinion over the legality of artist Shepherd Fairey's use of an AP photo as raw material for the iconic Barack Obama "Hope" poster nicely illustrates fair use's uncertainty.
151. See generally Dave Fagundes, Art, Licensing Markets, and the Limits of Unauthorized Appropriation, PRAWFSBLAWG (July 23, 2009), http://prawfsblawg. blogs.corn/prawfsblawg/2009/07/art-licensing-markets-and-the-limits-of- unauthorizedappropriation-shepard-fairey-conversation-at-th.html (blog post detailing conflicting opinions of various law professors).
152. The frequent uncertainty raised by assertions of fair use rights supports Lawrence Lessig's quip describing fair use as little more than "the right to hire a lawyer to defend your right to create." LAWRENCE LESSIG, FREE CULTURE: HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL CREATRVRRY 187 (2004).
153. Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 577 (1994) ("The task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis."
154. (citing Harper & Row Publishers, Inc. v. Nation Enters., 471 U. S. 539, 560 (1985);
155. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U. S. 417, 448 & n. 31 (1984); 1976 Copyright Act's legislative history)).
156. To be fair, 'twas ever thus. Folsom, 9 F. Cas. at 344 ("This is one of those intricate and embarrassing questions... in which it is not, from the peculiar nature and character of the controversy, easy to arrive at any satisfactory conclusion, or to lay down any general principles applicable to all cases.").
157. The Supreme Court did hold in Sony that recording television in order to "time-shift" program viewing was fair. Sony, 464 U. S. at 455-56.
158. Some express doubt, however, that the case would be decided the same way today. Litman, Goo, supra note 6, at 590 ("In the question-and-answer session following Paul Goldstein's keynote speech at this symposium, an audience member asked whether Sony would be decided the same way today. Professor Goldstein was confident that it would not, and nobody in the audience took issue with his conclusion. ").
159. And some opinions contain suggestions to the same effect. In re Aimster Copyright Litigation, 334 F.3d 643, 647-48 (7th Cir. 2003) (describing use of a recording device to skip commercials as the creation of an unauthorized derivative work).
160. Campbell, 510 U. S. at 590;
161. Harper, 471 U. S. at 561.
162. One could read section 107 as placing the burden of demonstrating that the challenged use is not fair on the plaintiff. 17 U. S. C. § 107 (2006) ("Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work... is not an infringement of copyright."). That's not the way the Supreme Court sees it.
163. Joseph P. Liu, Copyright Law's Theory of the Consumer, 44 B. C. L. Rev. 397, 405 (2003).
164. Id.
165. See, e.g., id. at 406-20;
166. Julie E. Cohen, The Place of the User in Copyright Law, 74 FORDHAM L. REV. 347, 348-49 (2005);
167. Tushnet, supra note 57, at 562-82.
168. Jessica Litman, Creative Reading, 70 LAW & CONTEMP. PROBS. 175, 177 (2007) ("Fair use is much too busy protecting The Wind Done Gone and trying to figure out what to do with Google Book Search to be able to support the copyright interests of millions of everyday readers, listeners, and viewers.").
169. Professor Litman proposes a range of options while favoring a focus on what Congress intended to be understood about its enacted rights: An individual who rips a CD to her iPod, turns on her brother's computer, fast forwards through objectionable portions of a television show or DVD, or plays music with the windows open isn't violating the copyright law, despite the plain language of § 106. People disagree on the rationale. It might be fair use; it might be implicitly licensed by copyright owners; it might be that the harm caused by each consumer is de minimis, or it might be, as I argue, that Congress intended the § 106 rights to be interpreted subject to the understanding that copyright prohibits unauthorized exploitation but not unauthorized enjoyment.
170. Litman, Lawful Personal Use, supra note 6, at 1908 (footnote omitted). In a sense, the argument favored by this Article parallels this final comment, but seeks to doctrinally ground it in the common law of property and Congress's failure to explicitly override it.
171. See infra Part III. A.
172. Professor Litman states: Section 106 means what it says, we tell our students. Any reproduction, creative alteration, or distribution, any performance or display outside of the home, we tell them, is copyright infringement unless it comes within some statutory or judgemade exception. We are even kind of gleeful at the implausible results that follow from the premise. "That's how the statute sets things up", we say, as if our hands were tied.
173. Litman, Creative Reading, supra note 89, at 180;
174. cf id. at 181 ("Copyright owners... have seized on the expansive literal reading and made it their own. Some courts are enforcing it, and copyright scholars are questioning it only faintly and half-heartedly.").
175. See, e.g., id. at 180;
176. Litman, Lawful Personal Use, supra note 6, at 1907 ("Congress has consistently viewed copyright as securing copyright owners' opportunities to exploit works without invading individuals' liberties to enjoy works.").
177. For example, Professor Litman notes that Congress intended the Audio Home Recording Act to give consumers a "free pass to make any copies of recorded music that technology would allow." Litman, Goo, supra note 6, at 590
178. (citing H. R. REP. No. 102-873 (1), at 24 (1992)
179. reprinted in 1992 U. S. C. C. A. N. 3578, 3594;
180. William F. Patry, Section 1008, PATRY COPYRIGHT BLOG (Aug. 17, 2005, 9:44 AM), http://williampatry.blogspot.com/2005/08/section-1008.html). In isolation, the provision looked to have done the job. Section 1008 provides: No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.
181. U. S. C. § 1008 (2006). Unfortunately, the statute elsewhere gives restrictive definitions of "digital audio recording device" and "digital audio recording medium" so as to limit the exemption provided by the American Home Recording Act (AHRA) such that it does not apply to the vast majority of devices used to make digital music recordings.
182. Id. § 1001. For his part, Patry writes, "[O]ur subjective intention and that of the Committee, expressed in the Committee report, was to exempt all noncommercial private copying. Because we failed to express that intention in the statute, I accept that our intention is irrelevant."
183. Patry, supra. As Professor Litman notes, judicial neglect of Congress's intent applied not only to section 1008, but to attempts to appeal to the animating principle in the fair use context. "Eight years [after the AHRA], Napster sought to make precisely those arguments: that consumer copying of recorded music was either fair use under Sony, permissible under the Audio Home Recording Act, or both.
184. The court didn't think the arguments merited serious consideration, and resolved them against Napster summarily." Litman, Goo, supra note 6, at 590 (footnotes omitted).
185. See, e.g., Grynberg, supra note 42, at 929 n. 152 (collecting sources). To say that there may be a greater reliance on textualist methodology is not to say that other considerations do not continue to inform statutory interpretation.
186. See, e.g., FRANK B. CROSS, THE THEORY AND PRACTICE OF STATUTORY INTERPRETATION 158 (2009).
187. See 1 PATRY, supra note 43, § 2:37 (collecting examples of legislative history use in copyright cases and contending that "[r]egardless of the polemical effect of Justice Scalia's attacks on legislative history, an empirical study of the use of legislative history in copyright cases demonstrates that Justice Scalia's criticism has had no discernible effect").
188. See, e.g., Leval, supra note 44, at 196-98 (discussing delegating and non-delegating statutes).
189. See supra Part LA. 1.
190. See supra note 48 and accompanying text.
191. 17 U. S. C. § 101 (2006) (defining copy as a material object "in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device").
192. See supra note 93.
193. Hayden v. Pataki, 449 F.3d 305, 367 (2d Cir. 2006) (Calabresi, J., dissenting) (noting that "some scholars, myself included, have suggested that it might be a good idea if... courts were permitted to read the law according to what they perceived to be the will of the current Congress, rather than that of a long-gone-by one", but conceding that "such an arrangement in the abstract... is simply not a part of our legal system"
194. (citing GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982))).
195. Orit Fischman Afori, Implied License: An Emerging New Standard in Copyright Law, 25 SANTA CLARA COMPUTER & HIGH TECH. L. J. 275, 276-77 (2009) (commenting that in copyright law, implied license resolves "two conflicts: the tension between the owner of a tangible object in which a work is incorporated and the owner of the copyright for that work, and the tension between the creator of a work (and/or the copyright owner) and his or her transferee (e.g., the work's commissioner) ").
196. 17 U. S. C. § 202 (2006) ("Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied.");
197. id. § 204 ("A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.").
198. Id. § 101 (defining work made for hire);
199. id. § 201 (b) (vesting copyright ownership in employer for works made for hire).
200. See, e.g., Effects Assocs., Inc. v. Cohen, 908 F.2d 555 (9th Cir. 1990) (holding that copyright holder's creation and delivery of work at request of moviemaker constituted an implied license for use of the work in defendant's film);
201. PATRY, supra note 43, § 5:131.
202. Many such expectations have since been protected by statute. The traditional firstsale doctrine, codified by the 1909 Act, 17 U. S. C. § 27 (1909) (repealed 1976)
203. preserved the ability of purchasers of copyrighted works to "sell or otherwise dispose" of them. 17 U. S. C. § 109;
204. see 4 PATRY, supra note 43, § 13:19.
205. For example, the sale of a computer program may carry with it a license to copy its contents into the computer (rather than simply running the program off of a CD). As Patry explains: [P]urchasing a used CD cannot be deemed to convey an implied license for reproduction. By contrast, sale and purchase of a computer program does convey an implied license for internal reproduction because the purpose of the program is use in a computer, a use that necessitates the making of a copy (at least during installation, and likely repeatedly thereafter in RAM storage), a right reserved to copyright owners.
206. PATRY, supra note 43, § 5:131;
207. see also 17 U. S. C. § 117.
208. See Afori, supra note 102, at 281.
209. 2 PATRY, supra note 43, § 5:131 ("Under the classic implied license, the author actually creates the work for the defendant, intending the defendant to use the work.... ").
210. See, e.g., Afori, supra note 102, at 290;
211. Raghu Seshadri, Bridging the Digital Divide: How the Implied License Doctrine Could Narrow the Copynorm-Copyright Gap, 2007 UCLA J. L. & TECH. 3;
212. John S. Sieman, Comment, Using the Implied License to Inject Common Sense Into Digital Copyright, 85 N. C. L. REV. 885, 921 (2007).
213. See, e.g., Nimmer, supra note 38, at 20 ("By virtue of the business transaction that led to ownership of the CD-ROM, the buyer of Nimmer on Copyright has an implicit license to boot up; Jolly Roger does not.");
214. id. at 32 (suggesting similar reasoning for forwarded email).
215. Seshadri, supra note 110, at 30, ¶ 59.
216. Cf. Janis, supra note 2, at 499-500 (discussing implied licenses of intellectual property in bilateral settings).
217. See, e.g., id. at 501 n. 460.
218. See, e.g., A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1026 (9th Cir. 2001) ("Courts have found implied licenses only in 'narrow' circumstances where one party 'created a work at [the other's] request and handed it over, intending that [the other] copy and distribute it.'" (alterations in original) (citations omitted)).
219. Afori, supra note 102, at 290.
220. Id. ("To date, however, the few scholars who have focused on the potential of the implied license doctrine as a means to resolve many of the current problems in copyright law, especially in the context of the Internet, have stuck to the doctrine's traditional contractual framework.").
221. Id. at 290;
222. id. at 295 ("Why, then, use the term 'implied license,' which clearly indicates a contractual concept? One way of answering this question is to regard the introduction of the implied license doctrine into copyright law as a metaphor.");
223. id. at 297 ("[T]raditional use of the implied license doctrine was to infuse reasonableness into intellectual property law when the contractual framework enabled it. Thus, an almost natural evolution of this doctrine would be to keep its aim, tradition and terminology, despite moving it out of the contractual framework.").
224. See supra Part I. B. Professor Afori analogizes her approach to what courts have done with certain open terms in the statute. Afori, supra note 102, at 298-99. But those terms have the benefit of actually being in the statute. Professor Afori contends that implied license doctrine is nonetheless legitimate because the concept is already a part of copyright.
225. Id. at 299 ("The proposed new meaning of the implied license doctrine fits the existing pattern of evolution in copyright terminology described above, since it builds on an already existing copyright term which is still not fully or clearly defined."). That may be, but in its traditional conception the doctrine has plausible legal bases in traditional contract and licensing principles. If detached from that foundation, as Professor Afori proposes, something new is needed if the revised doctrine is to stand.
226. See supra Part I. A.2.
227. Litman, Creative Reading, supra note 89, at 179 ("Relying on implied license to permit fan fiction and fan video reinforces the obvious negative pregnant: if it is not the sort of thing copyright owners have a clear interest in permitting, copyright law should not allow it.").
228. Id. at 178 ("[W]e could treat fannish creations as implicitly authorized derivative works. The implicit authorization flows from releasing a work in the mass media for which the buzz generated by fannish activity is likely to mean a huge increase in the bottom line...."). Professor Litman notes that this view would not "undermin[e] the core understanding that the copyright owner is entitled to decide whether or not to allow fans to engage in creative embroidery."
229. Id.
230. See infra Part II. E.3.
231. See, e.g., L. Ray Patterson, Copyright in the New Millennium: Resolving the Conflict Between Property Rights and Political Rights, 62 OHIO ST. L. J. 703, 707 (2001) ("Copyright, in short, has been changed from a marketing monopoly to a proprietary monopoly that gives the copyright holder as much control over a copyrighted work as the title to realty gives the titleholder over a plot of land.").
232. For a canvass of these differences, see, for example, Bell, supra note 2, at 532-40.
233. See id. at 526-27 ("In particular, the Copyright Act entitles a copyright holder to enlist agents of the state in prima facie violations of non-owners' rights. Absent copyright, we would remain free to employ our persons and property in echo of others. Copyright sharply limits those, our natural and common law rights." (footnotes omitted)).
234. See, e.g., THOMAS BABINGTON MACAULAY, 1 SPEECHES BY THE RT. HON. THOMAS BABINGTON MACAULAY, M. P. 394 (1853), available at http://name.umdl.umich.edu/ ABA0947.0001.001 ("The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one; it is a tax on one of the most innocent and most salutary of human pleasures....");
235. Tom G. Palmer, Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal Objects, 13 HARV. J. L. & PUB. POL'Y 817, 865 (1990) ("[T]he attempt to generate profit opportunities by legislatively limiting access to certain ideal goods, and therefore to mimic the market processes governing the allocation of tangible goods, contains a fatal contradiction: It violates the rights to tangible goods, the very rights that provide the legal foundations with which markets begin. ");
236. Jeremy Waldron, From Authors to Copiers: Individual Rights and Social Values in Intellectual Property, 68 CHI.-KENT L. REV. 841, 862 (1993) ("It sounds a lot less pleasant if, instead of saying we are rewarding authors, we turn the matter around and say we are imposing duties, restricting freedom, and inflicting burdens on certain individuals for the sake of the greater social good."). Of course, supporters of intellectual property rights also make normative claims alongside the utilitarian.
237. See generally Palmer, supra (discussing normative claims in favor of intellectual property rights). Others, while agreeing that there is a basis in natural rights arguments for the recognition of intellectual property rights, argue these same arguments counsel greater respect for the public's interest in copying than generally appreciated. See Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 YALE L. J. 1533, 1535 (1993) ("When the limitations in natural law's premises are taken seriously, natural rights not only cease to be a weapon against free expression; they also become a source of affirmative protection for free speech interests.").
238. This Article focuses on IP's consequences to property rights, not liberty interests. See infra note 211.
239. Cf, e.g., Wesley Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L. J. 710, 719 (1917) ("If A owns and occupies Whiteacre, not only B but also a great many other persons... are under a duty, e. g., not to enter on A's land.");
240. id. at 722 ("all rights in rem are against persons").
241. Cf. Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1011 (1984) ("The right to exclude others is generally one of the most essential sticks in the bundle of rights that are commonly characterized as property. With respect to a trade secret, the right to exclude others is central to the very defmition of the property interest." (citation omitted) (internal quotation marks omitted));
242. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U. S. 417, 433 (1984) ('"Anyone who violates any of the exclusive rights of the copyright owner,' that is, anyone who trespasses into his exclusive domain by using or authorizing the use of the copyrighted work in one of the five ways set forth in the statute, 'is an infringer of the copyright.'");
243. id. (discussing and citing 17 U. S. C. § 501 (a) (2006)). Even if trespass provides an arguable analogy, the question remains whether the analogy is best drawn to trespass to real property or to chattels, the remedies for which are less absolute.
244. Christina Bohannan, Copyright Harm, Foreseeability, and Fair Use, 85 WASH. U. L. REV. 969, 983-84 (2007).
245. Cf. Christopher M. Newman, Patent Infringement as Nuisance, 59 CATH. U. L. REV. 61, 95 (2009) ("Why do we differentiate between nuisance and trespass?... The concern raised by such a drastically enforced right to exclude is that landowners would be vested with tremendous veto power over a wide range of uses for any neighboring land.").
246. The rivalrous quality of the tangible world creates a zero sum game in some contexts. Someone has the property; someone does not. Not so with non-rival goods, which can be held by multiple parties at once. This is not to deny the existence of the utilitarian case for treating non-rival goods as rivalrous in order to encourage their production.
247. Newman, supra note 131, at 102 ("The ability to accurately identify non-possessory use conflicts in advance is subject to much greater uncertainty than is the ability to accurately identify the future need for possessory use of resources.").
248. See, e.g., id. at 105-06 ("To avoid infringing a patent, it is not sufficient to avoid appropriating or coming into contact with any particular physical objects.... [I]t is only through extremely detailed evaluation of uses that anyone is able to determine whether or not actions transgress the 'boundaries' of the patent.").
249. By the way, U. S. Patent Number 5, 443, 036 is real. U. S. Patent No. 5, 443, 036 (filed Nov. 2, 1993).
250. For example, evaluating whether the patent is invalid due to obviousness or lack of novelty.
251. A negative easement is an "easement that prohibits the servient-estate owner from doing something, such as building an obstruction. " BLACK'S LAW DICTIONARY (9th ed. 2009).
252. I am not the first to characterize IP rights in this manner. Newman, supra note 131, at 68, 106-07.
253. See, e.g., Zechariah Chafee, Jr., Equitable Servitudes on Chattels, 41 HARV. L. REV. 945, 954 (1928) (discussing failure of such servitudes to take hold in either England or the United States);
254. id. at 981-82 (citing, but disputing, authority that '"[i]t is also a general rule of the common law that a contract restricting the use or controlling subsales cannot be annexed to a chattel so as to follow the article and obligate the subpurchaser by operation of notice'" (quoting Park v. Hartman, 153 F. 24, 39 (6th Cir. 1907)));
255. Molly Shaffer Van Houweling, The New Servitudes, 96 GEO. L. J. 885, 906 (2008) ("The conventional wisdom, as described by contemporary commentators, is that personal property servitudes are seldom enforceable.").
256. Compare RESTATEMENT (SECOND) OF TORTS § 826 (1979) (calling on court considering a nuisance claim to weigh the "gravity of the harm [against] the utility of the actor's conduct")
257. with 17 U. S. C. § 107 (2006) (fair use factors require evaluating the "purpose and character" of the copyright use and "effect of the use upon the potential market for or value of the copyrighted work").
258. Cf. Van Houweling, supra note 138, at 914-16 (discussing information costs as possible reason for skepticism of servitudes on personal property). As Professor Newman observes: Indeed, when translated into their practical effects on the tangible property rights of others, IP rights can be seen to constitute a radical departure from the traditional principle of numerus clausus. IP rights amount to a form of a negative easement-a restriction on the uses owners can make of their tangible property. They violate, however, several traditional limitations on such servitudes. At common law, only a few specific types of activity could be restricted by the use of a negative easement: conduct that blocked the flow of light, air, or water in an artificial stream, or conduct that denied support to buildings or structures. These limitations protected a specific tract of adjacent property, making negative easements appurtenant by their nature. For the most part, the refusal of the common law to enforce negative easements in gross against subsequent owners of land has survived to the present day; while the Third Restatement of Property abandons this restriction, the recent innovation of conservation easements generally required specific legislation to make them enforceable. In practice, IP rights are negative easements in gross that are not limited to real property and that can be used to restrict an extremely broad range of uses. Once acquired, they make servient estates of every chattel and every person within the territorial reach of the law. These rights are freely transferable, and there are no requirements that the person initially acquiring them stand in any sort of privity to the tangible property burdened or that the interests protected in any way "touch and concern" that property. Newman, supra note 131, at 106-07 (footnotes omitted).
259. Tom Bell goes further in response to the banality objection by arguing that the copyright privilege is inferior by pedigree to the property rights with which it interferes: Nonetheless, the definition tendered here does helpfully clarify that copyright holders claim special immunities from the obligations that each of us has, in a state of nature and at common law, to respect others' rights to peaceably enjoy their persons and properties. As Hohfeld would say, in other words, "a [copy]privilege is the opposite of a duty [to respect others' natural and common law rights], and the correlative of a 'no-right' [suffered by defendants in infringement suits]." That offers a more fully and fairly positivist description of copyright, and one more true to Hohfeld's project than descriptions blandly observing that all rights limit each other. To the contrary, our common law and natural rights carry more normative weight, and thus more legal weight, than the special rights created by the Copyright Act. A thoroughgoing positivist committed to clarity would therefore do best to call copyright not simply property, nor (with all due respect to Hohfeld) a liberty relation, but rather a type of privilege. Bell, supra note 2, at 530-31 (alterations in original) (footnotes omitted).
260. See, e.g., Gordon, supra note 127, at 1566-67 (explaining argument).
261. 17 U. S. C. § 102 (b) (2006).
262. See, e.g., RDF Media Ltd. v. Fox Broad. Co., 372 F. Supp. 2d 556, 559 (CD. Cal. 2005) (allegation that television program Trading Spouses infringed British show Wife Swap);
263. Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 974-78 (2d Cir. 1980) (interpretation of facts surrounding explosion of the Hindenburg).
264. See, e.g., Matthew Bender & Co. v. West Publ'g Co., 158 F.3d 693, 699-702 (2d Cir. 1998) (copying of page numbers in Westlaw's printed court reporters is not copyright infringement).
265. * 4 (N. D. Cal. Apr. 1, 2005) (concerning yoga sequences claimed to have health promoting property).
266. See, e.g., Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807, 815 (1st Cir. 1995) (holding that a spreadsheet menu command hierarchy for a computer spreadsheet program was an uncopyrightable "method of operation"), aff'd by an equally divided court, 516 U. S. 233 (1996).
267. See, e.g., Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177, 181 (S. D. N. Y. 1976) (concluding that copyright infringement may be subconscious);
268. Waldron, supra note 127, at 882-83 ("[A]voiding the sort of subconscious influence that the judge traced in the Harrisongs case would require the most rigorous and stultifying selfscrutiny.... [A] duty to ensure that one is avoiding subconscious imitation in a world resonating with 'original'... is in fact very burdensome.").
269. The statute precludes efforts to use a copyright in an architectural work "to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place." 17 U. S. C. sect; 20 2006).
270. f. Gordon, supra note 127, at 568 "Or consider a landscape photographer. As each bit of the natural landscape is replaced by buildings, statues, and other human artifacts, the only way her interest in the common can remain 'as good' is if she is given the freedom to photograph her new surroundings.").
271. See generally id. at 1567-70 (discussing how IP may leave the public worse off);
272. Waldron, supra note 127, at 885-86 ("[W]e must address one another using, not only the resources of a common language and vocabulary, but, in a larger sense, whatever images and catch-phrases there are in the world, to provide points of mutual understanding and orientation...."). Professor Waldron also notes the failure of the "no hardship" argument to account for the prospect that would-be copiers would not see a world without the copyrighted work as the relevant baseline for comparison. In such instances, they might experience the inability to copy legally as a hardship, one leaving them worse off than if the work had never been created.
273. Id. at 866-67.
274. See Wheaton v. Peters, 33 U. S. (8 Pet.) 591 (1834);
275. Bloomer v. McQuewan, 55 U. S. (14 How.) 539 (1852).
276. One might ask whether the existence of state common law copyright regimes, which protected unpublished works and, later, sound recordings, undermine the strength of user property expectations. But cf. 1 PATRY, supra note 43, § 1:16 n. 2 ("Professor [Oren] Bracha also states, 'There is no known American case that applied or even discussed common law copyright' in the pre-1790 era."
277. (quoting Oren Bracha, The Ideology of Authorship Revisited 44-45 n. 116 (Univ. of Tex. Law, Pub. Law Research Paper No. 82), available at http://ssrn.com/abstract=869446)). The answer is no. First, common law rights were weak, divestible as they were by a work's publication.
278. LEON H. AMDUR, COPYRIGHT LAW AND PRACTICE 64 (1936) ("Strictly speaking it is not the fact that statutory copyright had been acquired which is instrumental in abrogating common law rights, but the fact that there had been a general publication. "). There was therefore traditionally little room for action at the state level to shape the property expectations of copyright users. To be sure, this argument is weaker with respect to the pre-1972 treatment of sound recordings, depending on whether one views the development of sound recording as a late technology, compare infra notes 153-57 and accompanying text, or the possibility of state copyright in non-tangible expressions.
279. Thomas J. Griffin, Common-Law Copyright in the Spoken Word, 32 A. L. R.3d 618, 618 (1970) (discussing limited authority on subject and observing that "the courts in a number of cases... have indicated that an idea or intellectual production is susceptible of common-law copyright only if it is embodied in writing or otherwise reduced to tangible form");
280. see MELVILLE B. NIMMER, 1 NIMMER ON COPYRIGHT § 11.1 (1976) (arguing against common law tangibility requirement). Second, the protection at state common law of unpublished works is consistent with the protection of user property rights. Prior to publication, works embodying creative expression are most likely to be within the control of their creator. Protecting an author's rights to such works will generally go hand in hand with protecting the author's personal property.
281. AMDUR, supra, at 32 ("The rights of an author, in his unpublished works, is as much protected at common law as other property in his possession. "). Once the work is published (and divested of state protection), however, the competing property claims of the public recipients of the work come into play.
282. See infra Part III. B.4.b. Even before publication, other property interests required balancing in setting the scope of common law copyright. Compare, e.g., AMDUR, supra, at 41 ("An absolute, unqualified sale of the manuscript or other unpublished work passes the entire property therein, including the common law rights of copy."), with id. at 44-49 (describing status of private letters insofar as common law copyright was generally retained by author though title over physical copy resides in recipient). Third, to whatever extent a state common law copyright tradition existed, it was excised by the 1976 Act's removal of publication as a requirement for copyright protection (with the limited exception of sound recordings created prior to February 15, 1972).
283. See 17 U. S. C. § 301.
284. See supra Part LA. 1.
285. 505 U. S. 1003 (1992).
286. Id. at 1029 ("Any limitation so severe cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership. ").
287. Id. at 1031 (explaining that nuisance exception means more than the state's "proffer[ing] the legislature's declaration that the uses [the landowner] desires are inconsistent with the public interest-[It must instead] identify background principles of nuisance and property law that prohibit the uses").
288. Cf. id. at 1031 ("The fact that a particular use has long been engaged in by similarly situated owners ordinarily imports a lack of any common-law prohibition...."). Proponents of strong personal use rights make the analogous point that certain unlicensed uses have long been the norm. See supra note 76 and accompanying text.
289. In a similar vein, the Supreme Court held that acquiring property after the date of a regulation's implementation does not bar a regulatory takings claim.
290. Palazzolo v. Rhode Island, 533 U. S. 606, 628-32 (2001).
291. See, e.g., Tom W. Bell, Authors' Welfare: Copyright as a Statutory Mechanism for Redistributing Rights, 69 BROOK. L. REV. 229, 229 (2003) ("[U]derstanding copyright as a form of authors' welfare suggests the need for, and potential shape of, reforms to end copyright as we know it.");
292. cf. Michael A. Carrier, Cabining Intellectual Property Through a Property Paradigm, 54 DUKE L. J. 1, 82-144 (2004) (calling for new defenses to IP liability based on limits found in traditional property doctrines).
293. The statute's division of interests between a copyright and a copy may protect user property rights. See, e.g., 17 U. S. C. § 202 (2006) (providing that transfer of copyright ownership does not "convey property rights in any material object").
294. Id. § 109.
295. And I do. See infra Part III. D.1.a;
296. see also Joseph P. Liu, Owning Digital Copies: Copyright Law and the Incidents of Copy Ownership, 42 WM. & MARY L. REV. 1245, 1302 (2001) ("Put another way, physical copy owner 'rights' are defined primarily by the law of personal property, with copyright law imposing a few limited restrictions. The idea of physical copy ownership thus seems to provide a simple and intuitively appealing explanation for the incidents of physical copy ownership. ").
297. 17 U. S. C. §§ 101, 106 (4) - (6).
298. Id. § 110 (5), (10).
299. Id. § 1008.
300. Cf. Patterson, supra note 124, at 712-14 (explicating distinction between work and copyright and how overlooking it broadens the rights of copyright holders).
301. See, e.g., Liu, supra note 86, at 401 ("[C]opyright law contains at least two primary conceptions of the consumer: the consumer as passive consumer and the consumer as author."); supra notes 86-89 and accompanying text.
302. See supra Part I. A.2.; cf. Liu, supra note 86, at 428 (arguing that "courts, in dealing with new technologies, should acknowledge and give some weight to consumer interests in autonomy, communication, and self-expression", particularly when considering if "new kinds of uses (such as those enabled by new technology like MP3 players, TiVo, ad-stripping software, and web browsers) constitute fair use").
303. See, e.g., Jazz Photo Corp. v. Int'l. Trade Comm'n, 264 F.3d 1094, 1102 (Fed. Cir. 2001) ("The purchaser of a patented article has the rights of any owner of personal property, including the right to use it, repair it, modify it, discard it, or resell it, subject only to overriding conditions of the sale.");
304. City of Tiffin v. McCormack, 34 Ohio St. 638, 644 (1878) ("Undoubtedly, the right to use property as the owner may please, provided that reasonable care is taken not to do unnecessary injury to others, is the ordinary rule.");
305. Johnson v. Mount Ogden Enters., 460 P.2d 333, 336 (Utah 1969) ("[E]very person has a right to use his own property as he sees fit so long as that use does not invade the rights of his neighbor unreasonably and substantially.");
306. Mayer v. Grueber, 138 N. W.2d 197, 204 (Wis. 1965) ("It is elementary that the owner of private property may make any proper use of it so long as he does not interfere with the rights of the public.");
307. C AM. JUR. 2D Property § 1 (2009) ('"[P]operty' [in a thing] does not consist merely in its ownership or possession, but also in the lawful, unrestricted right of its use, enjoyment, and disposal.").
308. Cf. Quanta Computer, Inc. v. LG Elecs., Inc., 128 S. Ct. 2109, 2122 n. 7 (2008)
309. (citing Keeler v. Standard Folding Bed Co., 157 U. S. 659, 666 (1895)
310. See Wheaton v. Peters, 33 U. S. (8 Pet.) 591 (1834).
311. As commentators have often noticed: As one court explained, "The First Amendment is not a license to trammel on legally recognized rights in intellectual property." The court did not, however, examine "the legally recognized rights" and as its smug assertion suggests, a major harm of copyright as a proprietary monopoly is that it obscures the sacrifice of free speech rights on the copyright altar. Patterson, supra note 124, at 719
312. (footnotes omitted) (quoting Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184, 1188 (5th Cir. 1979)).
313. 490 U. S. 730 (1989).
314. For textbook usage, see, for example, ROBERT P. MERGES, PETER S. MENELL & MARK A. LEMLEY, INTELLECTUAL PROPERTY IN THE NEW TECHNOLOGICAL AGE 447 (rev. 4th ed. 2007).
315. Reid, 490 U. S. at 741 ("[T]he term 'employee' should be understood in light of the general common law of agency."). Reid could be characterized as an example of federal common lawmaking.
316. See, e.g., Dane S. Ciolino, Why Copyrights Are Not Community Property, 60 LA. L. REV. 127, 148 (1999) (describing Reid as creating federal common law);
317. William Patty, Choice of Law and International Copyright, 48 AM. J. OF COMP. L. 383, 415 (2000) ("This is a common law of a very limited kind, and it may, in fact, be more accurate to describe the Court's approach as an interpretation of a statute rather than the creation of a body of law."). Federal common law is discussed in greater detail below, so some precision is required with respect to language. I would draw a distinction between situations in which courts look to the common law to help define a term as a matter of statutory construction and the "judicial filling of statutory interstices."
318. Henry J. Friendly, In Praise of Erie-and of the New Federal Common Law, 39 N. Y. U. L. REV. 383, 421 (1964);
319. see also Jay Dratler, Jr., Common-Sense (Federal) Common Law Adrift in a Statutory Sea, or Why Grokster Was a Unanimous Decision, 22 SANTA CLARA COMPUTER & HIGH TECH. L. J. 413, 420 (2006) ("When a statute speaks on a subject and comes close to giving an answer, but requires extrapolation to new or unanticipated circumstances, statutory interpretation is appropriate. In contrast, when the statute is silent and the legislative history suggests a huge open issue... federal-common-law analysis is appropriate."). The line between the two situations is often hard to draw, as an undefined term is arguably a gap.
320. See, e.g., Grynberg, supra note 42, at 948-53.
321. See, e.g., United States v. Texas, 507 U. S. 529, 534 (1993) ('"Statutes which invade the common law... are to be read with a presumption favoring the retention of longestablished and familiar principles, except when a statutory purpose to the contrary is evident.' In such cases, Congress does not write upon a clean slate. In order to abrogate a common-law principle, the statute must 'speak directly' to the question addressed by the common law."
322. (quoting Isbrandtsen Co. v. Johnson, 343 U. S. 779, 783 (1952);
323. Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 625 (1978))
324. (citing Astoria Federal Savings & Loan Ass'n v. Solimino, 501 U. S. 104, 108 (1991);
325. Milwaukee v. Illinois, 451 U. S. 304, 315 (1981)));
326. Astoria, 501 U. S. at 108 ("[W]here a common-law principle is well established... the courts may take it as given that Congress has legislated with an expectation that the principle will apply except 'when a statutory purpose to the contrary is evident.'" (citations omitted)
327. (quoting Isbrandtsen, 343 U. S. at 783));
328. Miedema v. Maytag Corp., 450 F.3d 1322, 1329 (11th Cir. 2006)
329. ("While the text of [the Class Action Fairness Act] plainly expands federal jurisdiction over class actions and facilitates their removal, '[w]e presume that Congress legislates against the backdrop of established principles of state and federal common law, and that when it wishes to deviate from deeply rooted principles, it will say so."'
330. (quoting United States v. Baxter Int'l, Inc., 345 F.3d 866, 900 (11th Cir. 2003))
331. (citing White v. Mercury Marine, Div. of Brunswick, Inc., 129 F.3d 1428, 1434-35 (11th Cir. 1997)));
332. Duvall v. Attorney Gen., 436 F.3d 382, 387 (3d Cir. 2006) ("Congress is expected to legislate against the backdrop of well-established common law principles. An accepted common law doctrine should be implied in a statutory scheme, despite the absence of express authorization, if application of the doctrine is consistent with the structure and purpose of that scheme." (citing Astoria, 501 U. S. at 108-11));
333. S. Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735, 764 (10th Cir. 2005) ("It is reasonable to assume that when Congress granted rights of way for the construction of highways across the unreserved lands of the West in 1866, it was aware of and incorporated the common law pertaining to the nature of public highways and how they are established."). "Clear" in this context does not mean explicit.
334. Astoria, 501 U. S. at 108 ("This interpretative presumption is not, however, one that entails a requirement of clear statement, to the effect that Congress must state precisely any intention to overcome the presumption's application to a given statutory scheme.").
335. See generally Quanta Computer, Inc. v. LG Elec., Inc., 128 S. Ct. 2109, 2115-17 (2008) (outlining history of patent exhaustion).
336. eBay Inc. v. MercExchange, LLC, 547 U. S. 388, 391 (2006)
337. (quoting Weinberger v. Romero-Barcelo, 456 U. S. 305, 320 (1982)).
338. See TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U. S. 23, 34-35 (2001).
339. 15 U. S. C. § 1115 (b) (2006). On incontestable marks generally, see id. §§ 1065, 1115 (providing that if a registration has become incontestable, "the registration shall be conclusive evidence of the validity of the registered mark and of the registration of the mark, of the registrant's ownership of the mark, and of the registrant's exclusive right to use the registered mark in commerce").
340. Wilhelm Pudenz, GmbH v. Littlefuse, Inc., 177 F.3d 1204, 1210 (11th Cir. 1999). The court explained: Consequently, the mere fact that functionality is not enumerated in § 1115 (b) is not sufficient to indicate congressional intent to eliminate the defense's applicability to incontestable registrations. Indeed, given the absence of any explicit reference to the functionality doctrine, which is a judicially created concept that predates the Lanham Act, we should be hesitant to read the Act as limiting the doctrine's reach. "The normal rule of statutory construction is that if Congress intends for legislation to change the interpretation of a judicially created concept, it makes that intent specific."
341. Id. (quoting Midlantic Nat'l Bank v. New Jersey Dep't of Envtl. Prot., 474 U. S. 494, 501 (1986)).
342. To be sure, the Fourth Circuit disagreed. Shakespeare Co. v. Silstar Corp. of Am., 9 F.3d 1091, 1099 (4th Cir. 1993). Congress ultimately clarified the matter by amending the statute to include a functionality defense and to incorporate the functionality principle into the federal trademark statute generally.
343. Trademark Law Treaty Implementation Act, Pub. L. No. 105-330, § 201, 112 Stat. 3064, 3069-70 (1998) (providing for "technical corrections" to the trademark statute). Wilhelm Pudenz was an interpretation of pre-1998 law.
344. See, e.g., CHARLES A. WRIGHT ET AL., 19 FEDERAL PRACTICE AND PROCEDURE § 4514 (1996) (describing "situations in which neither Congress nor the Constitution has provided a rule of decision for the resolution of a federal question case that is properly within the subject-matter jurisdiction of the federal courts;" in such matters "it can be inferred from congressional or constitutional intent that the federal courts should supply the necessary rule of decision by pronouncing common law to fill the interstices of a pervasively federal substantive framework");
345. Friendly, supra note 174, at 421.
346. As Caleb Nelson has written, when federal courts engage in common lawmaking and do not feel constrained to adopt the rule of the local state, they are unlikely to engage in flights of judicial creativity. Rather, they will craft doctrine with an eye to "general law-rules whose content is not dictated entirely by any single decisionmaker (state or federal), but instead emerges from patterns followed in many different jurisdictions."
347. Caleb Nelson, The Persistence of General Law, 106 COLUM. L. REV. 503, 503 (2006).
348. 464 U. S. 417 (1984).
349. Id. at 442 ("Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.").
350. Id. at 454-55 ("[W]e must conclude that this record amply supports the District Court's conclusion that home time-shifting is fair use.").
351. Id. at 431 ("Thus, long before the enactment of the Copyright Act of 1909, it was settled that the protection given to copyrights is wholly statutory. The remedies for infringement are only those prescribed by Congress." (citations and internal quotation marks omitted)).
352. To be sure, the legislative history contains language suggesting that the Copyright Act's reference to the owner's exclusive right "to authorize" statutorily prohibited uses opened the door to third party liability. H. R. REP. NO. 94-1476, at 61 (1976)
353. reprinted in 1976 U. S. C. CA. N. 5659, 5674 (stating that "[u]se of the phrase 'to authorize' is intended to avoid any questions as to the liability of contributory infringers" and using as an example a lawful purchaser of an authorized motion picture copy who "engages in the business of renting it to others for purposes of unauthorized public performance"). Sony at least nods in this direction, though the core of its reasoning on third party liability is elsewhere.
354. Sony, 464 U. S. at 435. And indeed, it is difficult to stretch the meaning of "authorization" to capture third party liability outside the vicarious liability context.
355. Cf. BLACK'S LAW DICTIONARY (8th ed. 2004) (defining "authorize" as, "To give legal authority; to empower . 2. To formally approve; to sanction .").
356. In Sony no such supervisory relationship existed with respect to the VCR maker and its customers, as the Court acknowledged. Sony, 464 U. S. at 437-38 (noting that in earlier cases "the 'contributory' infringer was in a position to control the use of copyrighted works by others and had authorized the use without permission from the copyright owner" but that the present case "plainly does not fall in that category. The only contact between Sony and the users of the Betamax that is disclosed by this record occurred at the moment of sale."). Small wonder then that the Court's later return to secondary liability principles in Grokster made no mention of this argument.
357. But see Note, Central Bank and Intellectual Property, 123 HARV. L. REV. 730, 745 (2010) (arguing that "the 'authorize' clause justifies Grokster and liability for intentional contributions, but not necessarily liability for knowing contributions").
358. Sony, 464 U. S. at 442 (in both patent and copyright law "the contributory infringement doctrine is grounded on the recognition that adequate protection of a monopoly may require the courts to look beyond actual duplication of a device or publication to the products or activities that make such duplication possible").
359. Id. at 437 ("In such cases, as in other situations in which the imposition of vicarious liability is manifestly just, the 'contributory' infringer was in a position to control the use of copyrighted works by others and had authorized the use without permission from the copyright owner.").
360. This conclusion was not inevitable. See Cent. Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 182 (1994) (rejecting aiding and abetting suit under § 10 (b) of the Securities Exchange Act and stating "when Congress enacts a statute under which a person may sue and recover damages from a private defendant for the defendant's violation of some statutory norm, there is no general presumption that the plaintiff may also sue aiders and abettors");
361. cf. id. at 193 n. 2 (Stevens, J., dissenting) ("When § 10 (b) was enacted, aiding and abetting liability was widely, albeit not universally, recognized in the law of torts and in state legislation prohibiting misrepresentation in the marketing of securities. The courts' reliance on common-law tort principles in defining the scope of liability under § 10 (b) was by no means an anomaly." (citations omitted)).
362. 545 U. S. 913 (2005).
363. Id. at 919 ("We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.").
364. Id. at 936 ("For the same reasons that Sony took the staple-article doctrine of patent law as a model for its copyright safe-harbor rule, the inducement rule, too, is a sensible one for copyright.").
365. Id. at 935 (quoting Kalem Co. v. Harper Bros., 222 U. S. 55, 62-63 (1911));
366. see also id. at 934-35 ("[N]othing in Sony requires courts to ignore evidence of intent if there is such evidence, and the case was never meant to foreclose rules of fault-based liability derived from the common law.").
367. Id. at 930 (citations omitted)
368. (quoting Sony, 464 U. S. at 434).
369. Dratler, supra note 174, at 421 & n. 37.
370. Of course one could argue that the absence of third party liability provisions in the statute is not an open question in need of a judicially supplied answer, but rather a congressional directive that third party liability principles do not apply to federal copyright law. Cf., e.g., Nw. Airlines, Inc. v. Transp. Workers Union of Am., AFL-CIO
371. U. S. 77, 97 (1981) ("But the authority to construe a statute is fundamentally different from the authority to fashion a new rule or to provide a new remedy which Congress has decided not to adopt.... The presumption that a remedy was deliberately omitted from a statute is strongest when Congress has enacted a comprehensive legislative scheme including an integrated system of procedures for enforcement."
372. (citing Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 625 (1978)).
373. See supra notes 181-82 and accompanying text; Dratler, supra note 174, at 421 ("Whether invited by Congress or not, the Supreme Court felt it had a duty to recognize and apply the universal principle of law that there are circumstances under which A may be liable for B's tort.").
374. See supra note 175.
375. Litman, Lawful Personal Use, supra note 6, at 1883-94 (describing older precedents);
376. id. at 1913 (describing expansion of perceived commercial scope of copyright monopoly);
377. Patterson, supra note 124, at 706 ("[D]uring the nineteenth, and much of the twentieth century, copyright was a regulatory monopoly limited to the marketing of works and could be defined as consisting of limited rights to which a given work was subject for a limited period of time.").
378. See supra Part II. A.
379. See, e.g., Chafee, supra note 138, at 954 (discussing failure of such servitudes to take hold in either England or the United States);
380. id. at 981-82 (citing, but disputing, authority that '"[i]t is also a general rule of the common law that a contract restricting the use or controlling subsales cannot be annexed to a chattel so as to follow the article and obligate the subpurchaser by operation of notice'"
381. (quoting Park v. Hartman, 153 F. 24, 39 (6th Cir. 1907))).
382. Chafee, supra note 138, at 955 ("In the United States, although supported by a few state decisions, [price maintenance licensing requirements] ha[ve] been decisively repudiated by the Supreme Court even when applied to the subject matter of statutory monopolies.");
383. see also infra Part III. D.l.a.
384. United States v. Texas, 507 U. S. 529, 534 (1993)
385. (quoting Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 625 (1978))
386. (citing Milwaukee v. Illinois, 451 U. S. 304, 315 (1981)).
387. See supra Part I. B.2.
388. 17 U. S. C. § 106 (2006).
389. See generally Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008)
390. cert, denied, 129 S. Ct. 2890 (2009);
391. see supra notes 34-38 and accompanying text.
392. See supra Part II. E.l. To the contrary, the statute implicitly endorses noncommercial uses. 17 U. S. C. § 107 (calling for consideration of market effect in fair use analysis).
393. 17 U. S. C. § 106.
394. See supra Part I. C. I.
395. See infra Part III. D.2.c;
396. see also Tim Wu, Tolerated Use, 31 COLUM. J. L. & ARTS 617 (2008). Professor Wu cites several examples of situations in which a copyright holder should have to take action before liability could be possible and argues for greater use of such mechanisms.
397. Id. at 621-22. His focus is more on why such mechanisms are a good idea and less on how they may be grounded in existing law.
398. See supra Part II. A;
399. see also Gordon, supra note 127, at 1559-60 ("It is conceptually untenable to treat 'property' and 'liberty' as if they were fully separate categories. Every conventional private property right contains a 'liberty to use,' and some liberties are public property strong enough to keep conventional private property from forming." (footnote omitted)). Keeping in mind the continuity between property and liberty concepts, this Article focuses on property rights, rather than liberty interests, as a basis for promoting user rights for two reasons. First, the common law offers a richer tradition of protection of property rights as a specific body of law than it does a general common law of liberty (for example, there is no first-year course in "liberty" even though liberty interests are implicated by courses in property, contracts, etc.). Second, discussion of liberty interests naturally leads to talk of constitutional protections, specifically freedom of speech. But First Amendment defenses generally fare poorly in copyright litigation.
400. See supra note 78.
401. But see Jennifer E. Rothman, Liberating Copyright: Thinking Beyond Free Speech, 95 CORNELL L. REV. 463, 465 (2010) (proposing approach "grounded in our understanding of the 'liberty' protected by the Fifth and Fourteenth Amendments" as a "foundation for certain types of uses by individuals that are integral to those individuals' identities").
402. This perspective addresses Professor Litman's critique of other efforts to rely on implied license because they focus too much on the perspective of copyright owners rather than users. Litman, Creative Reading, supra note 89, at 179 ("[B]y ignoring the central importance of readers, listeners, viewers, and players in the copyright scheme, we have all but conceded that the essential policy question in determining whether a use of copyrighted material should be lawful is the way the use looks from the viewpoint of the copyright owner.").
403. Cf. RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 7.14 (2000) ("The benefit of an unrecorded servitude, including a servitude created by prescription, implication, estoppel, or oral grant, is subject to extinguishment under an applicable recording act....");
404. id. (providing an exception for "a servitude that would be discovered by reasonable inspection or inquiry").
405. Though, of course, in traditional property contexts a license may become irrevocable. See, e.g., Janis, supra note 2, at 510.
406. As is true in the real property context as well. See infra note 253.
407. As a matter of aesthetics if nothing else. See also infra note 301.
408. Afori, supra note 102, at 290.
409. Steven A. Hetcher, Using Norms to Regulate Fan Fiction and Remix Culture, 157 U. PA. L. REV. 1869, 1884-87 (2009);
410. cf. id. at 1887 (discussing putative norm among copyright holders that copyright holders will tolerate non-commercial remixes of their works but noting that "there is an ongoing battle between this more tolerant norm and one that does not tolerate such uses").
411. See also infra Part III. D.2.a.
412. It is not uncommon for judges to allow such norms to guide development of the law, particularly if there is reason to believe that such customs are welfare maximizing. See, e.g., Ghen v. Rich, 8 F. 159 (D. Mass. 1881).
413. See generally ROBERT ELLICKSON, Order Without Law 254 (1991).
414. Ellickson's account of norms, and the literature it inspired, is perhaps removed from the discussion here insofar as copyright owners and users are often not in a close-knit relationship, though it is worth noting that one of Ellickson's examples of norm evolution involves copyright. ELLICKSON, supra, at 258-64. The argument here, in any case, is directed not to how norms involving copyright evolve, but whether there is a legal basis for permitting their operation.
415. Relatedly, Jennifer Rothman has argued that intellectual property norms, or customs in her account, should be discounted as a basis for doctrinal guidance in part because rights holders have a disproportionate influence on the shape of custom. Jennifer E. Rothman, The Questionable Use of Custom in Intellectual Property, 93 VA. L. REV. 1899, 1957 (2007) ("The most powerful IP owners have the greatest influence on both the creation and establishment of IP customs. The end result of this inequitable evolution is that smaller players in the IP markets and the public at large are inadequately represented by the emerging customs."). In my view, the danger comes not from looking to custom, but from an overly narrow view of whose customs-and whose property-backed expectations-matter.
416. Cf. id. at 1964 ("Neither the expectations of IP owners or risk-averse IP users should govern the scope of IP rights.").
417. There is nothing unusual about leaving a role for courts to interject conclusions as to whether norm-based expectations are objectively reasonable. Cf. California v. Ciraolo, 476 U. S. 207, 214 (1986) (rejecting Fourth Amendment claim despite subjective expectation of privacy where "respondent's expectation that his garden was protected from such observation is unreasonable and is not an expectation that society is prepared to honor");
418. Katz v. United States, 389 U. S. 347, 361 (1967) (Harlan, J., concurring) ("My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.'").
419. See supra Part II. E.l.
420. Or, alternatively, for the interpretation and construction of the statutory term "authoriz[tion]." See supra note 174.
421. One might ask what more Congress could have done to vest-if that was its intention-absolute authorization rights in the hands of copyright holders. Leaving aside that no such intention appears in the 1976 Act's legislative history, see supra note 92 and accompanying text, the problem is that Congress was not writing against a clean slate. If it had, its language could well have been enough. But in light of the common law backdrop and technical realities of the time, it is not unreasonable to require Congress to have included language specifying, for example, that "the personal nature of a copyright use is irrelevant to determining whether an exclusive right of § 106 has been violated." Lest this seem an unreasonable requirement, recall that Congress's failure to disclaim explicitly a contributory infringement cause of action resulted in its recognition in Sony and Grokster.
422. See supra Part II. E.3.
423. In the same way that servitude law requires notice, either record or inquiry, for a servitude to run with the land. See supra note 213.
424. See, e.g., infra note 281 and accompanying text.
425. See, e.g., New York v. Burger, 482 U. S. 691, 700 (1987) ("An expectation of privacy in commercial premises, however, is different from, and indeed less than, a similar expectation in an individual's home. This expectation is particularly attenuated in commercial property employed in 'closely regulated' industries." (citations omitted)).
426. See infra Part III. D.2.c.
427. See, e.g., Online Policy Grp. v. Diebold, Inc., 337 F. Supp. 2d 1195, 1203 (N. D. Cal. 2004) (rejecting effort to use copyright law to shield contents of e-mails regarding problems with manufacturer's voting machines).
428. Most famously, Baker v. Selden, 101 U. S. 99 (1879).
429. See generally 17 U. S. C. § 102 (b) (2006).
430. In the past, creators avoided publication in order to avoid some of the tradeoffs inherent in the prevailing copyright statute. For example, Disney reportedly forewent for a time the profits possible from distributing movies in their catalog in order to keep the works from being published. Nimmer, supra note 38, at 14-16.
431. Harper & Row Publishers, Inc. v. Nation Enters., 471 U. S. 539, 552-53 (1985).
432. Id. at 563 ("The trial court found that The Nation knowingly exploited a purloined manuscript. Unlike the typical claim of fair use, The Nation cannot offer up even the fiction of consent as justification. " (citation omitted)).
433. Id. at 564 ("A use that so clearly infringes the copyright holder's interests in confidentiality and creative control is difficult to characterize as 'fair.'").
434. The current version of § 107 makes clear that even uses of unpublished works may be deemed fair. 17 U. S. C. § 107 ("The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.").
435. As noted by then-professor Breyer in his skepticism of the need to expand copyright protection. Breyer, supra note 56, at 299-300.
436. Online Policy Grp. v. Diebold, Inc., 337 F. Supp. 2d 1195, 1203 (N. D. Cal. 2004).
437. See supra notes 149-50 and accompanying text.
438. See Waldron, supra note 127, at 885 ("[T]his environment, having been thrust upon us by those in whose interests cultural commodities circulate, is now the only one we have, so that it is now in a sense unfair to deny us the liberty to make of it what we will.").
439. Cf. Nimmer, supra note 38, at 39 (noting that Usenet postings "are frequently written in an environment in which posting and sharing are the expected norms" and that the "universal expectation of netiquette is that these postings will be forwarded" but suggesting that the creation of other legal regimes may be appropriate to address the issue).
440. See Warner Bros. Entrn't Inc. v. RDR Books, 575 F. Supp. 2d 513 (S. D. N. Y. 2008) (enjoining publication of Lexicon).
441. See, e.g., Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1272 (11th Cir. 2001) ("[The Wind Done Gone] uses several of [Gone With the Wind's] most famous lines, but vests them with a completely new significance.").
442. See, e.g., Castle Rock Entm't, Inc. v. Carol Publ'g Grp., Inc., 150 F.3d 132, 145 (2d Cir. 1998) (weighing market effect factor against maker of quiz book about Seinfeld even though copyright owner had not entered market).
443. See supra Part I. C.2.
444. See supra note 24 and accompanying text.
445. See, e.g., Jacqui Cheng, EMI Says DRM-Free Music Is Selling Well, ARS TECHNICA (June 20, 2007), http://arstechnica.conVold/content/2007/06/emi-says- drm-free-music-isselling-well.ars (detailing sales improvements after DRM dropped from for-sale music);
446. Ben Kuchera, Gamers Fight Back Against Lackluster Spore Gameplay, Bad DRM, ARS TECHNICA (Sept. 8, 2008), http://arstechnica.com/gaming/news/2008/09/ gamers-fight-backagainst-lackluster-spore-gameplay-bad-drm.ars (describing user unhappiness with DRM of computer game Spore).
447. See, e.g., MBV, http://www.mbvmusic.com (last visited Oct. 23, 2010).
448. See also infra Part III. D.2.b.
449. Once again assuming arguendo that copyrights are property.
450. But cf. Lior Jacob Strahilevitz, The Right to Abandon, 158 U. PA. L. REV. 355, 399 (2010) (observing that "[t]he conventional account holds that at common law, corporeal hereditaments like fee simple interests could not be abandoned but incorporeal interests (e.g., easements, mineral interests, and licenses) could" and criticizing common law hostility to abandonment of real property).
451. In discussing implied license in the patent context, Mark Janis points to cases in which the presence of waters on private property creates an implied license to navigate them until the owner remedies their presence. Janis, supra note 2, at 505 n. 475;
452. cf. Litman, Lawful Personal Use, supra note 6, at 1917
453. (observing that the "property law solution" to the "mess" of divisible copyright rights "is the easement by implication"). And outside the traditional property context, admiralty law provides salvors the right to demand compensation from owners of rescued property. 2 THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW § 16-1 (4th ed. 2004) (listing formal elements of a general maritime law salvage claim: " (1) there must be a marine peril placing the property at risk of loss, destruction, or deterioration; (2) the salvage service must be voluntarily rendered and not required by an existing duty or by special contract; and (3) the salvage efforts must be successful, in whole or in part").
454. Tim Wu notes the example of requiring owners of rural property to post no trespassing notices for trespass liability to exist. Wu, supra note 210, at 621
455. (citing N. Y. ENVTL. CONSERV. LAW § 11-2115 (McKinney 2010)), 625;
456. Mark R. Sigmon, Note, Hunting and Posting on Private Land in America, 54 DUKE L. J. 549, 558 (2004) (noting that "twentynine states require posting to exclude hunters" and collecting statutes).
457. A trademark is abandoned, for example, when "its use has been discontinued with intent not to resume such use" or "any course of conduct of the owner, including acts of omission as well as commission, causes the mark to become the generic name for the goods or services on or in connection with which it is used or otherwise to lose its significance as a mark." 15 U. S. C. § 1127 (2006). Abandonment is a defense to an infringement claim.
458. Id. § 1115 (b) (2). Three years without use is prima facie evidence of abandonment.
459. Id. § 1127.
460. As was famously the case for the Wilco album Yankee Hotel Foxtrot. Yankee Hotel Foxtrot, WKIPEDIA, http://en. wikipedia.org/wiki/Yankee-Hotel-Foxtrot (last visited Oct. 23, 2010).
461. To take a recent example of the former, a wedding video set to the tune of Chris Brown's song Forever became a viral hit online. Because YouTube employs content management tools to aid copyright holders in monetizing content, Brown's label was able to sell the song directly to viewers watching the video. Sales of the single shot up as a result of the user-generated content. Chris La Rosa & Ali Sandler, I Now Pronounce You Monetized: A YouTube Video Case Study, THE OFFICIAL GOOGLE BLOG (July 30, 2009, 9:32 AM), http://googleblog. blogspot.com/2009/07/i-now-pronounce-you-monetized-youtube.html. The making of the movie Serenity, based on the short-lived science fiction series Firefly, is an example of fan culture stimulating further demand for copyrighted work.
462. Jeff Jensen & Jeff Labrecque, "Serenity" How?, ENTM'T WEEKLY, Sept. 9, 2005, available at http://www.ew.com/ew/article/01102753, 00.html.
463. See Wu, supra note 210, at 628 (discussing potential efficiency of a copyright "No Action Policy" (internal quotation marks omitted)).
464. The problem is especially acute in the context of orphan works. See, e.g., U. S. COPYRIGHT OFFICE, REPORT ON ORPHAN WORKS (2006), available at http://www.copyright.gov/orphan/orphan-report.pdf.
465. 210 U. S. 339 (1908).
466. Congress codified the doctrine in the 1909 Act. 17 U. S. C. § 27 (1909) (repealed 1976);
467. see 4 PATRY, supra note 43, § 13:19.
468. 210 U. S. at 350-51.
469. Id.
470. Id. at 351 ("True, the statute also secures, to make [the right of copying] effectual, the sole right to vend copies of the book....").
471. Id. ("[Plaintiff] has exercised the right to vend.").
472. Id. (emphasis added).
473. Id.
474. Id. at 350 (noting that purchasers "made no agreement as to the control of future sales of the book, and took upon themselves no obligation to enforce the notice printed in the book");
475. cf. 4 PATRY, supra note 43, § 13:18 (noting Bobbs-Merrill as indicative of judicial reaction "against attempts to impose restraints on the alienation of tangible property"). Similar logic supported the patent exhaustion doctrine. It relied on a demarcation between patent exclusion rights, created by federal statute, and rights to use an object, governed by state common law property rights.
476. See Bloomer v. McQuewan, 55 U. S. (14 How.) 539, 549 (1852) ("And when the machine passes to the hands of the purchaser, it is no longer within the limits of the monopoly. It passes outside of it, and is no longer under the protection of the act of Congress.");
477. id. at 550 ("The implement or machine becomes his private, individual property, not protected by the laws of the United States, but by the laws of the State in which it is situated.");
478. id. at 553 ("[I]t can hardly be maintained that Congress could lawfully deprive a citizen of the use of his property after he had purchased the absolute and unlimited right from the inventor, and when that property was no longer held under the protection and control of the General Government, but under the protection of the State...").
479. 17 U. S. C. § 110 (5) (2006).
480. 40 F.2d 734 (S. D. Cal. 1929). Then-current copyright law gave the copyright holder the exclusive right to perform musical compositions publicly for profit.
481. Id. at 735.
482. Id. at 736 (copyright holder who licenses work "must be held to have acquiesced in the utilization of all forces of nature that are resultant from the licensed broadcast of his copyrighted musical composition").
483. Id. (noting unreasonableness of expecting radio owners to turn dial if a copyrightprotected music were broadcast in between unprotected matter).
484. 283 U. S. 191 (1931).
485. Id. at 199.
486. Id. n. 5.
487. 392 U. S. 390 (1968).
488. Id. at 399-400;
489. see also Teleprompter Corp. v. Columbia Broad. Sys., Inc., 415 U. S. 394 (1974).
490. Fortnightly, 392 U. S. at 396-97 n. 18;
491. see also id. at 401 n. 30 (contending Jewell's application would "retroactively... impose copyright liability where it has never been acknowledged to exist before").
492. Id. at 398.
493. Id. at 400.
494. 422 U. S. 151 (1975). The majority dismissed Jewell as perhaps applicable to a contributory infringement situation.
495. Id. at 160 n. 11.
496. Id. at 162-63 (emphasis added) (footnotes omitted).
497. 17 U. S. C. § 110 (5) (2006);
498. cf. Aiken, 422 U. S. at 164-65 (Blackmun, J., concurring in the result) (noting that defendant in Aiken was not a "mere listener" but benefitted commercially from use of the radio).
499. 381 F.3d 1178 (Fed. Cir. 2004).
500. Id. at 1182-83.
501. Id. at 1185.
502. 17 U. S. C. § 1201 (a) (3) (A).
503. Chamberlain, 381 F.3d at 1203-04.
504. Id. at 1193 ("The premise underlying this initial assignment of burden is that the copyright laws authorize members of the public to access a work, but not to copy it. The law therefore places the burden of proof on the party attempting to establish that the circumstances of its case deviate from these normal expectations....").
505. Id. To be sure, the panel did not see itself as broadening the understanding of what is generally deemed authorized copying (as opposed to access). Id. ("[D]efendants must prove authorized copying[,] and plaintiffs must prove unauthorized access.").
506. Id. at 1194. The opinion elsewhere expresses concern that an overly broad interpretation of the DMCA action would permit copyright holders to restrict consumer use of personal property.
507. Id. at 1201 ("Chamberlain's proposed construction would allow any manufacturer of any product to add a single copyrighted sentence or software fragment to its product, wrap the copyrighted material in a trivial 'encryption' scheme, and thereby gain the right to restrict consumers' rights to use its products in conjunction with competing products.").
508. Id. at 1202 n. 17 (noting that it is unclear whether DMCA liability exists for consumer who "circumvents a technological measure controlling access to a copyrighted work in a manner that enables uses permitted under the Copyright Act but prohibited by contract" but noting that plaintiff "did not attempt to limit its customers use of its product by contract" and reserving issue).
509. See generally Rebecca Tushnet, Legal Fictions: Copyright, Fan Fiction, and a New Common Law, 17 LOY. L. A. ENT. L. J. 651 (1997).
510. See supra note 218 and accompanying text.
511. See supra notes 255-58 and accompanying text.
512. See, e.g., Edward Lee, Warming Up to User-Generated Content, 2008 U. ILL. L. REV. 1459, 1494-95 (proposing a five-factor test for informal copyright practices to identify situations in which the "development of an informal copyright practice [is] more likely and more legitimate"). Several of Professor Lee's factors would be relevant to the question of implied authorization. His non-exhaustive list of factors is: (1) unlitigated use and the absence of settled case law finding the practice or type of practice in question constitutes an infringement; (2) the existence of a novel issue of law, such as one involving a new technology; (3) the existence of a colorable fair use defense, or other exemption or defense; (4) high transaction costs in obtaining formal licenses from copyright holders; and (5) no express objection by the copyright holder as to the particular use in question or the type of practice, or some indication that the copyright holder might allow it.
513. Id. at 1494.
514. See supra notes 255-57 and accompanying text.
515. See supra notes 110-11 and accompanying text.
516. See generally Ned Snow, Copytraps, 84 IND. L. J. 285 (2009).
517. See id. at 323.
518. See supra Part III. BAg.
519. Cf. Lee, supra note 295, at 1496-99 (applying informality test to label photocopying for personal use a legitimate practice while concluding that unauthorized music file sharing is illegitimate).
520. See supra notes 63-67 and accompanying text.
521. See supra Part III. B.4.
522. 412 F. Supp. 2d 1106 (D. Nev. 2006).
523. Though it is not the only one. See, e.g., Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007);
524. Kelly v. Arriba Soft Corp, 336 F.3d 811 (9th Cir. 2003).
525. Field, 412 F. Supp. 2d at 1112.
526. Id. at 1113.
527. See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd, 518 F. Supp. 2d 1197, 1226 (C. D. Cal. 2007) ("[T]hough not seemingly acknowledged by the district court in Field, the Ninth Circuit has explained that the implied license doctrine in copyright cases is to be very narrowly construed.").
528. Field, 412 F. Supp. 2d at 1116.
529. Id. ("[Plaintiff's] conduct is reasonably interpreted as a grant of a license to Google for that use.").
530. See supra Part III. BAc.
531. Cf. RESTATEMENT (SECOND) OF TORTS § 827 (1979) (stating that in a nuisance case, "the burden on the person harmed of avoiding the harm" is an "important" factor in evaluating the gravity of the harm).
532. For example, whether a user is exercising personal property rights has ready applicability to the first fair use factor: the purpose and character of the challenged use. Courts could treat as relevant whether the defendant had a reasonable property-backed expectation that her use was authorized. A court could similarly evaluate the conduct of the copyright holder in determining the reasonableness of the defendant's conduct.
533. Cf. supra note 295 and accompanying text (discussing Professor Lee's proposed framework).
534. See supra note 61.
535. 42 U. S. C. § 1983 (2006).
536. Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982).
537. See, e.g., Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) ("Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.").
538. The proper lessons of civil rights law as applied to the copyright context could be an article unto itself. To the extent we want to keep the analogy a close one, it is worth noting that the Supreme Court recently diluted qualified immunity doctrine's ability to "clearly establish" law by abandoning the requirement that a court determine whether the alleged facts make out a constitutional violation before determining whether the right in question was clearly established. Saucier v. Katz, 533 U. S. 194 (2001), once required courts to engage in a two-step inquiry. First, the court had to determine whether the plaintiff alleged a violation of a constitutional right. If so, the court had to consider whether said right was "clearly established" at the time of the challenged act.
539. Id. at 201. The Court modified the rule in 2009 to permit judges to exercise discretion in deciding whether to address both prongs of the Saucier inquiry, meaning courts can simply conclude that the right is not clearly established and do nothing to aid in that endeavor.
540. Pearson, 129 S. Ct. at 818 ("On reconsidering the procedure required in Saucier, we conclude that, while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory."). That said, even after Pearson, courts retain the ability to use qualified immunity doctrine to clarify the state of the law and an analogous doctrine could play a similar part in copyright law.