The implications for law of user innovation

Minnesota Law Review

Volumn 94, Issue 5, 2010, Pages 1417-1477

  Fisher III, William W ^a  

^a HARVARD UNIVERSITY   (United States)

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EID: 79251615626     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (381)

1. The most thorough study of the practice, culture, and economics of making mashups is LAWRENCE LESSIG, REMIX: MAKING ART AND COMMERCE THRIVE IN THE HYBRID ECONOMY 1-19, 68-76 (2008).
2. DANGER MOUSE, THE GREY ALBUM (2004).
3. For discussions of some of the legal implications of Danger Mouse's work, see MATTHEW RIMMER, DIGITAL COPYRIGHT AND THE CONSUMER REVOLUTION: HANDS OFF MY IPOD 130-34 (2007);
4. Derek E. Bambauer, Faulty Math: The Economics of Legalizing The Grey Album, 59 ALA. L. REV. 345, 349-50 (2008).
5. Ben Greenman, The Mouse that Remixed, NEW YORKER, Feb. 9, 2004, at 24.
6. Lauren Gitlen, DJ Makes Jay-Z Meet Beatles, ROLLING STONE, Feb. 5, 2004, http://www.rollingstone.com/news/story/5937152/dj-makes-jayz-meet-beatles.
7. David Browne, Clash of the Titans, ENT. WKLY., Mar. 19, 2004, at 64.
8. Douglas Wolk, Mother Nature's Son, I Got 99 Problems But a Glass Onion, VILLAGE VOICE, Feb. 18-24, 2004, at 86.
9. See The Grey Video, http://waxy.org/random/video/grey-video.mov (last visited Apr. 11, 2010).
10. See Bush and Blair: Read My Lips, http://video.google.com/videoplay? docid=3580315324203381023# (last visited Apr. 11, 2010).
11. For a description and analysis of the work, see Lessig, supra note 1, at 73-74.
12. See Spec-Attack-Ular, http://aspecialthing.ning.com/video/video/show?id= 1978181:Video:1682 (last visited Apr. 11, 2010).
13. See Shining, http://www.youtube.com/watch?v=sfout-rgPSA (last visited Apr. 11, 2010).
14. See, e.g., Vader Sessions, http://www.youtube.com/watch?v=6A0rw G39Jzk (last visited Apr. 11, 2010).
15. See, e.g., Christian Bale Takes David to the Dentist, http://www.youtube.com/watch?v=70r-Ca8wcVg (last visited Apr. 11, 2010);
16. Lady Gaga vs. Christopher Walken-Poker Face, http://www.youtube.com/ watch?v=nGH5 ygIKyT0 (last visited Apr. 11, 2010);
17. Tick-Toxic, http://www.youtube.com/watch?v=gRHfd9Yto0A (last visited Apr. 11, 2010).
18. The website for Eclectic Method, http://www.eclecticmethod.net (last visited Apr. 11, 2010), provides a helpful explanation of this new approach.
19. See Rogers v. Koons, 960 F.2d 301, 303-05 (2d Cir. 1992).
20. See Blanch v. Koons, 467 F.3d 244, 247 (2d Cir. 2006).
21. See John Armitage & Joy Garnett, Radicalizing Refamiliarization, 8 J. VISUAL CULTURE 176, 180-81 (2009).
22. For many additional examples, see Famous Painters Copied Photographs, http://www.fogonazos.es/2006/11/famous-painters-copied-photographs-06.html (last visited Apr. 11, 2010).
23. See Armitage & Garnett, supra note 17, at 177-78. Full disclosure: after I presented the lectures embodying this Article, I agreed to represent Shepard Fairey in the lawsuit in which the Associated Press contends that his unauthorized use of an AP photograph constitutes copyright infringement.
24. See Melena Rizik, Shepard Fairey Wins Right to a New Lawyer, N. Y. TIMES, Nov. 10, 2009, at C2. Although I formulated the arguments presented herein before I became involved in the litigation, it is possible that my engagement in the case has affected the final version of this Article.
25. See, e.g., Collage Art, http://www.collageart.org/ (last visited Apr. 11, 2010) (cataloguing international artists employing collage techniques).
26. See, e.g., Clean Play DVDs, http://www.cleanplaydvds.com (last visited Apr. 11, 2010) (selling sanitized versions of popular movies);
27. cf. Clean Flicks of Colo. v. Soderbergh, 433 F. Supp. 2d 1236, 1244 (D. Colo. 2006) (granting injunctive relief to several motion picture studios for copyright infringement by Clean Flicks and other companies engaged in editing out sexual and violent content from movies and then selling them).
28. The most widely circulated of those modified versions, "The Phantom Edit", is available at http://www.torrentz.com/ 2ce660814f19e909e15bbb96ad43a82335892926 (last visited Apr. 11, 2010).
29. See WILLIAM W. FISHER III, PROMISES TO KEEP: TECHNOLOGY, LAW, AND THE FUTURE OF ENTERTAINMENT 28-29 (2004).
30. Aaron Schwabach, The Harry Potter Lexicon and the World of Fandom: Fan Fiction, Outsider Works, and Copyright, 70 U. PITT. L. REV. 387, 388-91 (2009);
31. Paul Constant, Where No Man Has Gone Before, NEWSWEEK, May 5, 2009, http://www.newsweek.com/id/195963.
32. REBECCA TUSHNET, Legal Fictions: Copyright, Fan Fiction, and a New Common Law, 17 LOY. L. A. ENT. L. J. 651, 655 (1997).
33. See generally KAREN HELLEKSON & KRISTINA BUSSE, FAN FICTION AND FAN COMMUNITIES IN THE AGE OF THE INTERNET: NEW ESSAYS (2006).
34. See Tushnet, supra note 24, at 655 (tracing the genre's origin to the second season of Star Trek in 1967).
35. See LAWRENCE LESSIG, FREE CULTURE: HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL CREATIVITY 25-28 (2004).
36. Many such communities can be found at Fan Fiction, http://www.fanfiction. net/ (last visited Apr. 11, 2010)
37. or Archive of Our Own, http://archiveofourown.org/media (last visited Apr. 11, 2010).
38. See Anupam Chander & Madhavi Sunder, Everyone's a Superhero: A Cultural Theory of "Mary Sue" Fan Fiction as Fair Use, 95 CAL. L. REV. 597, 598-601 (2007).
39. See HENRY JENKINS, TEXTUAL POACHERS: TELEVISION FANS AND PARTICIPATORY CULTURE 187-89 (1992);
40. Sonia K. Katyal, Performance, Property, and the Slashing of Gender in Fan Fiction, 14 J. GENDER SOC. POL'Y & L. 461, 481-97 (2006).
41. See Andrew Furlow, A Glimpse into the Lawless World of "Real Person Slash" (May 15, 2009) (unpublished paper, on file with the author). One might fairly ask: is it accurate to describe stories of this last sort as involving the appropriation or modification of preexisting cultural products? Response: yes, at least to the extent that the personae of the persons depicted therein can plausibly be described as "constructed."
42. See Celia Pearce, Emergent Authorship: The Next Interactive Revolution, 26 COMPUTER & GRAPHICS 21, 26-28 (2002);
43. Lars Bo Jeppesen, The Implications of "User Toolkits for Innovation" 3 (Copenhagen Bus. Sch., Working Paper 2002), available at http://www.druid.dk/conferences/summer2003/papers/JEPPESEN.pdf. One study found that, in a sample of ninety-four computer games, thirty-five percent made such toolkits available to users.
44. Lars Bo Jeppesen & Måns J. Molin, Consumers as Co-Developers: Learning and Innovation Outside the Firm, 15 TECH. ANALYSIS & STRATEGIC MGMT. 363, 367 (2003). "Toolkits in practice with computer games range from what are called level builders (which allow players to create their own game environments) to character-building kits (which enable users to create individual avatars). Some games even provide users with the code or scripting language to create their own games."
45. Reinhard Prügl & Martin Schreier, Learning from Leading-Edge Customers at The Sims: Opening up the Innovation Process Using Toolkits, 36 R&D MGMT. 237, 240 (2006).
46. Prügl & Schreier, supra note 31, at 243-44.
47. Id. at 246.
48. Id.
49. See JOHN PALFREY & URS GASSER, BORN DIGITAL: UNDERSTANDING THE FIRST GENERATION OF DIGITAL NATIVES 113 (2008).
50. An important exception to legal scholars' disinterest in this phenomenon is Katherine J. Strandburg, Users as Innovators: Implications for Patent Doctrine, 79 U. COLO. L. REV. 467 (2008). Part V takes up Strandburg's suggestions concerning how legal doctrine might be adjusted to accommodate behavior of this sort.
51. See ERIC VON HIPPEL, DEMOCRATIZING INNOVATION 1-2 (2005).
52. See Nikolaus Franke et al., Finding Commercially Attractive User Innovations: A Test of Lead-User Theory, 23 J. PROD. INNOVATION MGMT. 301, 309 tbl.4 (2006). The nature and scale of the sport are sketched in the following passage:
53. Kite surfing is a water sport in which the user stands on a special board, somewhat like a surfboard, and is pulled along by holding onto a large, steerable kite. Equipment and technique have evolved to the point that kites can be guided both with and against the wind by a skilled kite surfer and can lift rider and board many meters into the air for tens of seconds at a time. Today there are between 100, 000 and 250, 000 kite surfers worldwide.
54. Id. at 305.
55. See, e.g., Kite Forum, http://www.kiteforum.com/blogs.php (last visited Apr. 11, 2010).
56. Photographs of some of the original amateur leashes and some modern commercial versions can be found at http://cyber.law.harvard.edu/people/tfisher/ Ice%20Axe%20Leashes.pdf (last visited Apr. 11, 2010).
57. See Cameron Cross, Craig Luebben (1960-2009), CLIMBING, Oct. 2009, at 68, 68.
58. See Carliss Baldwin et al., How User Innovations Become Commercial Products: A Theoretical Investigation and Case Study, 35 RES. POL'Y 1291, 1294-96 (2006);
59. Christoph Hienerth, The Commercialization of User Innovations: The Development of the Rodeo Kayak Industry, 36 R&D Mgmt. 273, 285-88 (2006);
60. Sonali K. Shah, From Innovation to Firm Formation in the Windsurfing, Skateboarding, and Snowboarding Industries 9-21 (Univ. of Ill. Working Paper No. 05-0107, 2004), available at http://apps.olin. wustl.edu/faculty/conferences/ cres-gort/pdf/6SonaliShah.pdf.
61. Rodeo kayakers perform flips, spins, aerobic maneuvers, and other tricks in white water. A representative video of these activities is available at http://www.youtube.com/watch?v=xx WsvoInLw8 (last visited Apr. 11, 2010).
62. See, e.g., Flyfishing Fly Swap, http://about-flyfishing.com/library/ weekly/aa020100a.htm (last visited Apr. 11, 2010);
63. HipWader's Fly Fishing Forums and Fly Tying Message Board, http://flyfishingforums.hipwader.com/viewforum.php?id=7 (last visited Apr. 11, 2010).
64. See Johann Füller et al., Innovation Creation by Online Basketball Communities, 60 J. BUS. RES. 60, 63-70 (2007).
65. See id. at 63 tbl.1.
66. See id. at 64-68.
67. See id. at 67 fig.2 (describing one such comprehensive proposal, contributed by Vocaldigital23 to the Niketalk forum).
68. See AfriGadget, http://www.afrigadget.com/ (last visited Apr. 11, 2010).
69. See AfriGadget, Retrofit Turns a Bicycle to an 'Ambulance', http://www.afrigadget.com/2009/07/29/retrofit-turns-a-bicycle-to-an-ambulance/ (last visited Apr. 11, 2010).
70. A video demonstrating the system can be found at http://www.youtube.com/ watch?v=9bx-PkNIfK4 (last visited Apr. 11, 2010).
71. The windmill is depicted and described at AfriGadget, Homemade Windmill in Malawi, http://www.afrigadget.com/2006/12/18/homemade-windmill-in-malawi/ (last visited Apr. 11, 2010). For more about Kamkwamba's background and inventions
72. see generally WILLIAM KAMKWAMBA & BRYAN MEALER, THE BOY WHO HARNESSED THE WIND (2009).
73. Instinctiv Shuffle is described-and can be obtained for free-at http://www.appleiphoneschool.com/2009/01/13/instinctiv-shuffle-an-ipod (last visited Apr. 11, 2010).
74. See, e.g., Robert Mullins, Unauthorized iPhone Apps Market Flourishes, PC WORLD, Sept. 27, 2007, http://www.pcworld.com/article/137766/unauthorized- iphone-apps-market-flourishes.html;
75. iPhone Hacks, http://www.iphonehacks.com/iphone-applications/ (last visited Apr. 11, 2010) (chronicling unauthorized applications).
76. See Amanda Hesser, Quick, Hide the Tools. Here Comes a Chef, N. Y. Times, Sept. 16, 1998, at F1.
77. See, e.g., Cruising World, Gear and Systems, http://www.cruisingworld. com/gear-and-systems.jsp (last visited Apr. 11, 2010);
78. eHow, How to Customize Your Boat for Lake Fishing, http://www.ehow.com/ how-2031813-customize-boat-fishing.html (last visited Apr. 11, 2010);
79. Piragis Boundary Waters Catalogue, Customizing Your Boat, http://www.boundarywaterscatalog.com/browse.cfm/2, 116.html (last visited Apr. 11, 2010).
80. See Athearn Marine Agency, Lobster Boats, http://www.athearnmarine.com/ vesl-Lobster-1.htm (last visited Apr. 11, 2010) (offering lobster boats with a variety of lengths and engine power);
81. BoatQuest.com, Lobster New & Used Boats for Sale, http://www.boatquest.com/Lobster/1/allcategoryboats.aspx (last visited Apr. 11, 2010) (advertising a variety of lobster boat models);
82. Permit Master, Gillnet Combos, http://www.permitmaster.com/boat-listings. php?list-type=cat&catid=10 (last visited Apr. 11, 2010) (offering gillnet boats with such modifications as new reduction gears, hydraulic pumps, and helm pumps).
83. See, e.g., AME Chopper Products, http://www.ame-chopper.de/Seiten-USA/ A00-index.htm (last visited Apr. 11, 2010) (promoting a variety of products used to construct and modify choppers);
84. AR Harley & Sons, http://www.harleycustom.com/ (last visited Apr. 11, 2010) (presenting custom motorcycle parts, including those designed for European models);
85. Team Cycle USA Motorcycle Kit Specialist, http://www.teamcycle.com/ (last visited Apr. 11, 2010) (advertising kits, parts and accessories for custom-made Harley Davidsons and other chopper brands).
86. See Harley Owners Group, http://www.hog.com (last visited Apr. 11, 2010) (offering Harley Owners Group members a variety of benefits, including access to customization advice);
87. see also Gil McWilliam, Building Stronger Brands Through Online Communities, 41 MIT SLOAN MGMT. REV. 43, 44 (2000) (noting that Harley Davidson created its respectable owners' group in response to the notoriety the Hell's Angels motorcycle gang received for their outlaw behavior).
88. See, e.g., AutaBuy, http://www.autabuy.com/Vehicles/Details.cfm?VID= 397552&Year=2005&Make=Harley-Davidson&Model=SoftailCustomFXSTC (last visited Apr. 11, 2010) (selling a 2005 Harley Softail Custom FXSTC);
89. ClassyBikes, http://www.classybike.com/68253 (last visited Apr. 11, 2010) (marketing a 2005 custom-built Harley Softail).
90. Among the many films celebrating the culture that has grown up around this practice is Grease (Paramount Pictures 1978).
91. For a thorough description of the history and culture of lowriders (including many pictures of the modified cars), see Absolute Astronomy, Lowriders, http://www.absoluteastronomy.com/topics/Lowrider (last visited Apr. 11, 2010).
92. See id.
93. See id. (describing some lowriders as being altered with an emphasis on their hydraulic suspensions so that they can "hop").
94. See id. (noting that lowriders remain popular among youths on the West Coast). Many examples of lowriders for sale may be found at CarsOnline, http://www.cars-on-line.com/lowrider.html (last visited Apr. 11, 2010).
95. See, e.g., Build Your Own Custom Powermatic Table Saw, http://www.woodworkingonline.com/2007/12/27/build-your-own-custom-powermatic- table-saw/ (last visited Apr. 11, 2010);
96. Free Table Saw Extension Plans, http://wayneofthewoods.com/table-saw- extension.html (last visited Apr. 11, 2010).
97. See, e.g., Multi-purpose Cutting Station with Miter Saw and Radial Arm Saw, http://lumberjocks.com/projects/23050 (last visited Apr. 11, 2010) (showing an example of a miter table that has been upgraded to function as an all-purpose cutting station).
98. See, e.g., John English Pro's Column: Router Table Tips, http://www.norwesttools.com.au/page/shop/info-page/a/infopage-id/e/64 (last visited Apr. 11, 2010).
99. See, e.g., Make a Good Router/Shaper Table for use with a Moto Tool, http://www.airfieldmodels.com/information-source/how-to-articles-for-model- builders/tools/dremel-router-shaper-table-v2/index.htm (last visited Apr. 11, 2010).
100. See, e.g., How to Build a Custom Drill Press Table, http://www.annel davis.com/bobandanne/drillpresstable.htm (last visited Apr. 11, 2010).
101. See, e.g., How to Build a Custom Workbench, http://www.ronhazelton.com/ archives/howto/Workbench-Construction.shtm (last visited Apr. 11, 2010) (giving instructions on how to build a custom four-section workbench with one surface dropped to accommodate a sliding compound miter saw).
102. Jim Richey, All About Router Jigs, http://www.finewoodworking.com/ Workshop/WorkshopAllAbout.aspx?id=23077 (last visited Apr. 11, 2010).
103. See Router Forums, http://www.routerforums.com/ (last visited Apr. 11, 2010) (providing access to fora on a variety of router-related topics).
104. Patterns for router jigs may also be found at FineWoodWorking, http://www.fine woodworking.com/Workshop/WorkshopDirectory.aspx?dir=Router+Jigs (last visited Apr. 11, 2010);
105. on YouTube, at Making a Box Joint Jig: Making Quarter Inch Router Cuts, http://www.youtube.com/watch?v=mlrYf1t5oB8 (last visited Apr. 11, 2010);
106. and at Wood Routers: About Wood Router Jigs, http://www.youtube.com/ watch?v=6-3yVWScCQ (last visited Apr. 11, 2010).
107. Christian Luthje, Customers as Co-Inventors: An Empirical Analysis of the Antecedents of Customer-Driven Innovations in the Field of Medical Equipment (2003) (unpublished paper, on file with author);
108. see also Wim G. Biemans, User and Third-Party Involvement in Developing Medical Equipment Innovations, 11 TECHNOVATION 163, 179-80 (1991);
109. Brian Shaw, The Role of the Interaction Between the User and the Manufacturer in Medical Equipment Innovation, 15 R&D MGMT. 283, 288 (1985).
110. I am grateful to Paul Ohm of the University of Colorado Law School for alerting me to this phenomenon.
111. See REED GHAZALA, CIRCUIT-BENDING: BUILD YOUR OWN ALIEN INSTRUMENTS; FEEL THE GHOST IN THE MACHINE; CREATE THE SOUNDS OF ANOTHER DIMENSION; THIS IS TOTALLY TWISTED!; HOW TO GET NEW NOISE FROM OLD TOYS 4 (2005). The title and subtitles of Ghazala's book on the subject suggest much concerning both the technique of circuit bending and the culture that surrounds it.
112. Id.
113. The most accessible introduction to the nature and purposes of circuit bending is The Circuit Bending Documentary, http://absurdity.biz/Circuit Bending/Bent.htm (last visited Apr. 11, 2010).
114. See Bent 2010, http://www.bentfestival.org/ (last visited Apr. 11, 2010) (announcing the date and location of the 2010 Bent Festival to celebrate circuit bending, hardware hacking, and do-it-yourself electronics).
115. See Circuit Bending Synth DIY, http://www.getlofi.com/ (last visited Apr. 11, 2010) (providing a forum to exchange ideas and learn about circuit bending).
116. See, e.g., Noise and Toys Volume 1, http://www.wearerecords.com/noistoys. htm (last visited Apr. 11, 2010) (offering samples from a compact disc album of circuit bending music).
117. See YOCHAI BENKLER, THE WEALTH OF NETWORKS, 1-34 (2006);
118. PALFREY & GASSER, supra note 35, at 122-23;
119. Edward Lee, Warming Up to User-Generated Content, 2008 U. ILL. L. REV. 1459, 1500-01 (citing a study in which nearly half of those surveyed said they had created digital content for others to view online). Benkler convincingly argues that the surge in user modifications of cultural products was not "determined" by the new technologies.
120. BENKLER, supra, at 16-18. Rather, technological change created a new set of "affordances" that made the modifications easier and more likely.
121. See id. at 18. In Part V. B. I will consider the forces or impulses in addition to technology that may have contributed to the surge.
122. See VON HIPPEL, supra note 37, at 121-24 (noting that individual hobbyists can design new products, such as music and art, at an advanced level).
123. See BENKLER, supra note 80, at 372-75.
124. Some of the products being modified, such as popular songs and automobiles, have been produced and distributed in truly enormous numbers. Others, such as the greeting card upon which Jeff Koons's String of Puppies was based, see supra note 15, or technical ice axes
125. see supra note 40, are sold in smaller markets. But all have been produced in quantities sufficiently large to render irrelevant the policy issues implicated by alterations of unique or rare works.
126. Cf. Visual Artists Rights Act of 1990, 17 U. S. C. §§ 101, 106A (2006) (limiting coverage of the statute to works of art produced in 200 or fewer copies).
127. For the theory of "public goods" on which this argument is based, see, for example, JOHN STUART MILL, PRINCIPLES OF POLITICAL ECONOMY 932-33 (Longmans, Green, & Co. 1909) (1848);
128. J. G. Head, Public Goods and Public Policy, 17 PUB. FIN. 197, 198-206 (1962).
129. For examples from the sphere of cultural goods, see LESSIG, supra note 1, at 77-82, 200 (explaining how the creation of remixes, such as anime music videos, educates users and generates a community with a shared interest).
130. For more examples from the sphere of cultural goods, see BENKLER, supra note 80, at 99-106;
131. LESSIG, supra note 1, at 143-76. For substantiation of this generalization with respect to equipment
132. see VON HIPPEL, supra note 37, at 77-91.
133. See DAVID ROBERTS, THE LAST OF HIS KIND: THE LIFE AND ADVENTURES OF BRADFORD WASHBURN, AMERICA'S BOLDEST MOUNTAINEER 61-84 (2009).
134. See Füller et al., supra note 44, at 64-68.
135. Posting of Gav to RouterForums, http://www.routerforums.com/ introductions/16944-hi-fromcroatia.html (Oct. 12, 2009, 02:53 EST).
136. See, e.g., Lessig, supra note 1, at 254-59 (suggesting that we treat amateur and professional remixes differently).
137. See THE FLYING SCOTSMAN (Doosra Production Limited 2006) (documenting Obree's career and equipment innovations).
138. See Creative Commons, http://creativecommons.org/about/ (last visited Apr. 11, 2010).
139. See, e.g., Thomas Goetz, Sample the Future, WIRED, Nov. 2004, http://www.wired.com/wired/archive/12.11/sample.html;
140. Matt Haughey, Independent Musicians, CREATIVE COMMONS, Oct. 1, 2005, http://creativecommons.org/audio/musicians (describing how the folk-rock band The Walkingbirds planned to use the Creative Commons licenses for their work).
141. See Creative Commons, License Your Work, http://creativecommons.org/ choose/ (last visited Apr. 11, 2010).
142. See Nine Inch Nails, The Slip, http://dl.nin. com/theslip/signup (offering free downloads of the album The Slip under a Creative Commons license).
143. See J. D. LASICA, DARKNETC 250-51 (2005) (explaining the game industry's reliance on modifications to games by users to help increase sales).
144. See Lee, supra note 80, at 1515-18 (citing comments from television network executives who believe that condoning mashup videos encourages consumers to be more interested in the original network shows);
145. see also Interview with Michael Fricklas, General Counsel of Viacom, http://www.youtube.com/watch?v=aaqAya-QqP8 (last visited Apr. 11, 2010) (acknowledging that permitting mashup videos leads to heightened consumer participation with original sources). For the reasons discussed in the preceding section, the limitation of permission to "noncommercial" uses is problematic and will be difficult to apply in practice.
146. About the Portable Light Project, http://portablelight.org/about (last visited Apr. 11, 2010).
147. See Posting of Erik Hersman to AfriGadget, http://www.afrigadget.com/ 2009/09/ (Sept. 5, 2009) (explaining that a boda-boda is a bicycle or motorcycle taxi in East African countries).
148. See id. (describing how the PLP photovoltaic panels enable a bodaboda driver to be contacted by customers throughout the work day).
149. See Lee, supra note 80, at 1503; Posting of Eliot Van Buskirk to Listening Post, http://www.wired.com/listening-post/2008/02/mp3s-amplives-r/ (Feb. 13, 2008, 07:47 EST) (announcing that Amplive and Radiohead reached an agreement for Amplive to release the remixed album).
150. Ariana Eunjung Cha, Harry Potter and the Copyright Lawyer, WASH. POST, June 18, 2003, at A1 (quoting an attorney at Rowling's literary agency).
151. Andrew Adam Newman, Lego Rejects a Bit Part in a Spinal Tap DVD, N. Y. TIMES, Aug. 11, 2009, http://www.nytimes.com/2009/08/11/business/11lego.html?-r= 2.
152. Id. (internal quotation marks omitted).
153. See id. To view the Lego Group video
154. see Lego Spinal Tap-Tonight I'm Gonna Rock You Tonight, http://www.youtube.com/watch?v=zTxzvsELd DM&feature=player-embedded (last visited Apr. 11, 2010). I am grateful to Judith Donath for the reference.
155. See JONATHAN ZITTRAIN, THE FUTURE OF THE INTERNET-AND HOW TO STOP IT 2 (2008).
156. See Posting of Matt Buchanan to Gizmodo, http://gizmodo.com/502 7790/why-we-still-need-the-iphone-app-black-market (July 23, 2008, 10:00 EST) (describing why many applications cannot be used on Apple products).
157. See id. (describing applications that do not meet Apple's criteria to be used on Apple products).
158. See Lough v. Brunswick Corp., 86 F.3d 1113, 1115-16, 1122-23 (Fed. Cir. 1996) (concluding that Lough did not engage in experimental use and declaring his patent invalid).
159. See Nikolaus Franke & Frank Piller, Value Creation by Toolkits for User Innovation and Design: The Case of the Watch Market, 21 J. PROD. INNOVATION MGMT. 401, 412-13 (2004), for experiments that substantiate the considerable financial benefit to the manufacturers of providing customers these toolkits.
160. Piller and Walcher describe this technique as follows: Idea competitions build on the nature of competition as a means to encourage users to participate at an open innovation process, to inspire their creativity, and to increase the quality of the submissions. When the contest ends, submissions are evaluated by an expert panel. Users whose submissions score highest receive an award from the manufacturer, which is often granted in exchange for the right to exploit the solution in its domain.
161. Frank T. Piller & Dominik Walcher, Toolkits for Idea Competitions: A Novel Method to Integrate Users in New Product Development, 36 R&D MGMT. 307, 307 (2006).
162. Ogawa and Piller describe the method as establishing an open line of communication to customers to gain access to new products and designs. The method permits companies to limit their financial risk in manufacturing a product by initially gauging interest in a product via a small yet unidentified market, and then stopping production if preorders do not meet expectations.
163. See Susumu Ogawa & Frank T. Piller, Reducing the Risks of New Product Development, 47 MIT SLOAN MGMT. REV. 65, 66 (2006).
164. Frank Piller, Petra Schubert, Michael Koch, and Kathrin Moslein. have described this approach as follows: In this article we challenge the assumption that offering customized products requires an individual (one-to-one) relationship between the customer and the supplier. We argue that individuality does not always mean one-to-one. On the contrary, collaboration among customers in online communities (and not directly with the online merchant) can help to overcome the mass confusion phenomenon of customized products. We will introduce the concept of a collaborative customer co-design environment which aims at reducing mass confusion. In this context collaborative customer co-design refers to the use of toolkits for customer co-design which are used interactively between different actors. Using dedicated design toolkits, customers can jointly work on a customized variant, either delivered to just one member of the group or to all of them.
165. Frank Piller et al., Overcoming Mass Confusion: Collaborative Customer Co-Design in Online Communities, 10 J. COMPUTER-MEDIATED COMM. 3, 4 (2005);
166. see also Christoph Berger et al., Co-Designing Modes of Cooperation at the Customer Interface: Learning from Exploratory Research, 2 EUR. MGMT. REV. 70 (2005) (examining the benefits and challenges of collaboration between customers, retailers and manufacturers);
167. Per Kristensson et al., Harnessing the Creative Potential Among Users, 21 J. PRODUCT INNOVATION MGMT 4, 11-13 (2004) (studying the involvement of users in the development of mobile phone services).
168. See Motoko Rich, Rhett, Scarlett, and Friends Prepare for Yet Another Encore, N. Y. TIMES, May 16, 2007, at E1.
169. See Bambauer, supra note 3, at 350;
170. Lee, supra note 80, at 1532-33 (noting that author Anne Rice has posted a message on her website expressly prohibiting fan fiction based on her work).
171. See generally Tushnet, supra note 24. For examples of cease-and-desist letters sent by authors within this group, see Chilling Effects Clearinghouse, http://www.chillingeffects.org/index.cgi (hosting a database of cease-and-desist letters that fans have received from copyright holders).
172. See Bambauer, supra note 3, at 349-50;
173. cf. Lee, supra note 80, at 1519-20 (noting that the music industry has had a "mixed response" to mashups).
174. See Paul Rosen, Up the Vélorution: Appropriating the Bicycle and the Politics of Technology, in APPROPRIATING TECHNOLOGY: VERNACULAR SCIENCE AND SOCIAL POWER 365, 373-75 (Ron Eglash et al. eds., 2004) (describing the history and business practices of Shimano).
175. The distributor of DVR Upgrade, a kit that increases the recording capacity of a TiVo DVR, offers the following blunt statement of this stance: Some people are using several of the items that we sell to upgrade their TiVo. You must understand that this is dangerous. High voltages are present inside your TiVo and you can be hurt if you open the case. You must also understand that it WILL VOID YOUR TiVo WARRANTY. Simply put, this means that it WILL VOID YOUR TiVo WARRANTY if you open your TiVo. Like as in don't call or email me or TiVo or Philips or Sony or anybody else if you damage something. Don't even touch those Torx screws unless you fully understand this and are prepared to toss it in the trash can if something goes wrong. 9th Tee Enterprises, TiVo Upgrades, http://9thtee.com/tivo-dt2.htm (2009).
176. See ZITTRAIN, supra note 106, at 101-03 (explaining the shift to "tethered" devices that do not allow user modifications).
177. See id.
178. See Christopher Sprigman, Reform(aliz)ing Copyright, 57 STAN. L. REV. 485, 487-88 (2004).
179. See 17 U. S. C. § 106 (2006).
180. See FISHER, supra note 22, at 38-81.
181. See 17 U. S. C. § 504 (2006).
182. See, e.g., Pivot Point Int'l, Inc. v. Charlene Prods., Inc., 372 F.3d 913, 932 (7th Cir. 2004).
183. See generally U. S. Patent and Trademark Office, Patents Process, http://www.uspto.gov/patents/process/index.jsp (last visited Apr. 11, 2010) (describing the steps required to obtain a patent).
184. See 35 U. S. C. § 271 (2006).
185. See 15 U. S. C. § 1125 (a) (2006).
186. See id. § 1125 (c). To my knowledge, no published judicial opinion has relied on this theory, but the current (generous) version of this section is relatively new; we do not yet know how broadly it will be applied.
187. 17 U. S. C. § 1201 (2006).
188. See id. § 1201 (a) (1).
189. See id. § 1201 (a) (3) (A).
190. See id. § 1204 (a). For a recent application of these provisions
191. see Davidson & Assocs. v. Jung, 422 F.3d 630, 640 (8th Cir. 2005).
192. See, e.g., Universal City Studios v. Reimerdes, 111 F. Supp. 2d 294, 318 (S. D. N. Y. 2000) (holding that Content Scramble System, an encryption system used to prevent copying of DVDs, "effectively controls access" to copyrighted movies)
193. aff'd sub nom. Universal City Studios v. Corley, 273 F.3d 429 (2d Cir. 2001).
194. See 17 U. S. C. § 107 (2006).
195. For a discussion of some recent examples, notably Bill Graham Archives v. Dorling-Kindersley Ltd. and Blanch v. Koons
196. see Jeannine M. Marques, Fair use in the 21st Century: Bill Graham and Blanch v. Koons, 22 BERKELEY TECH. L. J. 331, 334-47 (2007).
197. See, e.g., Aro Mfg. Co. v. Convertible Top Replacement Co., 365 U. S. 336, 346 (1961) (distinguishing permissible repairs from impermissible reconstruction).
198. For a review of the relevant case law, see DONALD S. CHISUM, CHISUM ON PATENTS § 16.03[3] (Matthew Bender & Co. 2004). In the past, patentees have rarely pursued the modifiers themselves; rather, they have brought contributory-infringement suits against the companies that produced and sold the components that the modifiers employed to refurbish or alter their products.
199. See, e.g., Mercoid Corp. v. Mid-Continent Co., 320 U. S. 661, 662 (1944). But as the visibility and scale of user modifications grows, this may change.
200. The set of factors varies slightly by circuit. For comparisons of the tests and empirical studies of their applications, see Barton Beebe, An Empirical Study of the Multifactor Tests for Trademark Infringement, 95 CAL. L. REV. 1581 (2006);
201. Kevin Blum et al., Consistency of Confusion? A Fifteen-Year Revisiting of Barton Beebe's Empirical Analysis of Multifactor Tests for Trademark Infringement (Harvard Law Sch. Pub. Law & Legal Theory Working Paper Series, Paper No. 09-32, 2009), available at http://ssrn. com/abstract=1424142.
202. For cases that seek to provide guidance concerning when confusion of this sort will or will not arise, see, for example, Champion Spark Plug Co. v. Sanders, 331 U. S. 125, 128-29 (1947);
203. Nitro Leisure Prods. v. Acushnet Co., 341 F.3d 1356, 1359-65 (Fed. Cir. 2003);
204. Karl Storz Endoscopy Am., Inc. v. Surgical Techs., Inc., 285 F.3d 848, 853-55 (9th Cir. 2002);
205. Davidoff & Cie, S. A. v. PLD Int'l Corp., 263 F.3d 1297, 1300-02 (11th Cir. 2001).
206. See Storage Tech. Corp. v. Custom Hardware Eng. & Consulting, Inc., 421 F.3d 1307, 1318 (Fed. Cir. 2005) (holding that, to establish a violation of the DMCA, it must be shown that the technological protection measure being circumvented bears some "reasonable relationship to the protections that the Copyright Act otherwise affords"
207. (quoting Chamberlain Group, Inc. v. Skylink Techs., Inc. 381 F.3d 1178, 1202 (Fed. Cir. 2004)));
208. cf. Lexmark Int'l, Inc., v. Static Control Components, Inc., 387 F.3d 522, 548 (6th Cir. 2004) (holding that the DMCA does not apply where the
209. See, e.g., Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180, 1186 (9th Cir. 2001);
210. Suntrust Bank v. Houghton Mifflin Co., 252 F.3d 1165, 1166 (11th Cir. 2001) (per curiam);
211. L. L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 32-34 (1st Cir. 1987).
212. See, e.g., Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 902 (9th Cir. 2002) (holding that the song Barbie Girl did not infringe Mattel's trademark of the Barbie doll).
213. See FISHER, supra note 22, at 199-200. The most notorious recent illustration of these characteristics is the promiscuous sharing of sound recordings through peer-to-peer networks.
214. See id. at 110-12.
215. See id. at 200-01.
216. But see Julie E. Cohen, Creativity and Culture in Copyright Theory, 40 U. C. DAVIS L. REV. 1151, 1192-98 (2007) (pointing out that the argument radically oversimplifies both the nature of creativity and the potential impact of law upon it).
217. For an intriguing examination of contexts in which nonmonetary motivations seem sufficient, see Rebecca Tushnet, Economies of Desire: Fair use and Marketplace Assumptions, 51 WM. & MARY L. REV. 513, 522-36 (2009).
218. See Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 Harv. L. Rev. 281, 291-321 (1970).
219. See, e.g., Computer Assocs. Int'l, Inc. v. Altai, Inc. 982 F.2d 693, 706 (2d Cir. 1992).
220. Stewart E. Sterk, Rhetoric and Reality in Copyright Law, 94 MICH. L. REV. 1197, 1216 (1996).
221. See Bambauer, supra note 3, at 381-82 (noting that Marvel Comics generates the majority of its revenue from derivate works).
222. Compare ANDREW KEEN, THE CULT OF THE AMATEUR: HOW TODAY'S INTERNET IS KILLING OUR CULTURE 199 (2007) (advocating increased copyright infringement suits by media companies in order to reverse "the cut-andpaste culture of the Web"), and Posting of Rob Merges to The University of Chicago Law School Faculty Blog, http://uchicagolaw.typepad.com/faculty/2009/03/ip-social- and-cultural-theory.html (Mar. 9, 2009, 17:02 CST) (arguing that a culture that emphasizes participation "may significantly worsen" the environment for creative and original works)
223. with Posting of Madhavi Sunder to The University of Chicago Law School Faculty Blog, http://uchicagolaw.typepad.com/faculty/2009/03/ip-social-and- cultural-theory-madhavi-sunder.html (Mar. 10, 2009, 17:14 CST) (arguing that "democratic participation" enhances the value of culture).
224. See WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF INTELLECTUAL PROPERTY LAW 39 (2003);
225. Michael J. Meurer, Copyright Law and Price Discrimination, 23 CARDOZO L. REV. 55, 98-99 (2001).
226. See LANDES & POSNER, supra note 153, at 110-11;
227. Glynn S. Lunney, Jr., Reexamining Copyright's Incentives-Access Paradigm, 49 VAND. L. REV. 483, 512-13 (1996).
228. See Bambauer, supra note 3, at 364-69;
229. William W. Fisher III, When Should We Permit Differential Pricing of Information?, 55 UCLA L. Rev. 1, 3-4 (2007).
230. See Sterk, supra note 150, at 1217;
231. see also Bambauer, supra note 3, at 359-61;
232. Naomi Abe Voegtli, Rethinking Derivative Rights, 63 BROOK. L. REV. 1213, 1246 (1997).
233. John Tehranian, Et Tu, Fair Use? The Triumph of Natural-Law Copyright, 38 U. C. DAVIS L. REV. 465, 490-91 (2005);
234. see also Sterk, supra note 150, at 1227-30.
235. See William W. Fisher III, Theories of Intellectual Property, in NEW ESSAYS IN THE LEGAL AND POLITICAL THEORY OF PROPERTY 168, 169-73 (Stephen R. Munzer ed., 2001).
236. ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 175 (1974).
237. See Cyrill P. Rigamonti, The Conceptual Transformation of Moral Rights, 55 AM. J. OF COMP. L. 67, 67-68 (2007);
238. see also Seanna Valentine Shiffrin, Intellectual Property Theory, in 2 A COMPANION TO CONTEMPORARY POLITICAL PHILOSOPHY 653, 654-63 (Goodin, Pettit & Podge eds., 2007).
239. See id.
240. See 17 U. S. C. § 106A (2006).
241. Cf. Rigamonti, supra note 160 (offering a more complex history of the relationship between personality theory and the spread of moral rights).
242. See Lessig, supra note 1, at 257 ("If the owner can't control the use, then the misuse is not the owner's responsibility.").
243. See JAMES BESSEN & MICHAEL J. MEURER, PATENT FAILURE: HOW JUDGES, BUREAUCRATS, AND LAWYERS PUT INNOVATORS AT RISK 14 (2008) (finding that patents play a "limited and highly contingent" role in promoting innovation);
244. Anthony Arundel, The Relative Effectiveness of Patents and Secrecy for Appropriation, 30 RES. POL'Y 611, 621-23 (2001) (finding that research and development firms value secrecy over patents);
245. Wesley M. Cohen et al., R&D Spillovers, Patents and the Incentives to Innovate in Japan and the United States, 31 RES. POL'Y 1349, 1364 (2002) ("[P]atents are reported to be the least effective among the major appropriability mechanism in the preponderance of US industries....");
246. G. Dosi et al., How Much Should Society Fuel the Greed of Innovators? On the Relations Between Appropriability, Opportunities and Rates of Innovation, 35 Res. POL'Y 1110, 1118-19 (2006) (concluding that adjusting the level of patent protection would have little impact on creative innovation);
247. Henrik Sattler, Appropriability of Product Innovations: An Empirical Analysis for Germany, 26 INT'L J. TECH. MGMT. 502, 514-15 (2003) (finding that patents in Germany are the "least effective means of appropriability") .
248. See Carliss Y. Baldwin & Eric von Hippel, Modeling a Paradigm Shift: From Producer Innovation to User and Open Collaborative Innovation 23-24 (MIT Sloan Sch., Working Paper No. 4764-09, 2009), available at http://ssrn.com/ abstract=1502864.
249. See John Markoff & Laura M. Holson, Apple's Latest Opens a Developer's Playground, N. Y. TIMES, July 10, 2007, at C8;
250. David B. Yoffie & Michael Slind, Apple Inc., 2008, at 14 (Harv. Bus. Sch. Case Study 9-708-480, 2008).
251. See Robert Mullins, Unauthorized iPhone Apps Market Flourishes, PC WORLD, Sept. 27, 2007, http://www.pcworld.com/article/137766/unauthorized-iphone-apps- market-flourishes.html. [Developers] understand why Apple is being protective of its platform. If someone installs an unauthorized application and it breaks some other part of the iPhone, a customer will blame Apple, not the developer. If an iPhone software upgrade somehow disables an unauthorized app, Apple can't have to worry about apps it doesn't support in the first place. Not all observers are persuaded. Jonathan Zittrain, for example, argues that Apple is motivated at least in part by the simple desire to maintain the high profit margins associated with its dominance of the multifunction PDA-cell phone market.
252. See Markoff & Holson, supra note 167, at C8.
253. See Baldwin & von Hippel, supra note 166, at 26-27.
254. See Fisher, supra note 22, at 30.
255. The attitudes that likely underlie this reaction are explored in J. Stacy Adams, Toward an Understanding of Inequity, 67 J. ABNORMAL & SOC. PSYCHOL. 422, 424 (1963) ("When the normative expectations of the person making social comparisons are violated... feelings of inequity result.").
256. See, e.g., Wendy J. Gordon, Fair use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors, 82 Colum. L. Rev. 1600, 1657 (1982);
257. William F. Patry & Richard A. Posner, Fair use and Statutory Reform in the Wake of Eldred, 92 CAL. L. REV. 1639, 1646 (2004).
258. But cf. Wendy J. Gordon, Market Failure and Intellectual Property: A Response to Professor Lunney, 82 B. U. L. REV. 1031, 1034-35 (2002) (suggesting that this is not the only circumstance in which the fair use doctrine should apply).
259. Richard A. Posner, When is Parody Fair Use?, 21 J. LEGAL STUD. 67, 69 (1992).
260. See, e.g., id. at 71-73. For Posner, a genuine parody is one that "uses the parodied work as a target rather than as a weapon" and does not "take so large a fraction (somehow computed) of the copyrighted features of the original work as to make the parody a substitute for that work."
261. Id. at 71.
262. See Tom W. Bell, Fair use vs. Fared Use: The Impact of Automated Rights Management on Copyright's Fair use Doctrine, 76 N. C. L. REV. 557, 581-84 (1998).
263. One could imagine such things: a grotesque exaggeration of a feature of a basketball shoe (thickness of the sole, size of the cushioning bladder) meant to make the feature in question look silly; sewing multiple overlapping pockets on a fly-fishing vest in order to mock the packrat tendencies of flyfishermen. But such examples are likely to be rare.
264. See VON HIPPEL, supra note 37, at 33-34.
265. See id. at 19-22.
266. See id. at 8, 66-70.
267. See id.
268. See id. at 107-08.
269. See id. at 6, 46.
270. See id. at 60.
271. See Jenna Wortham, Apple's Game Changer, Downloading Now, N. Y. TIMES, Dec. 6, 2009, at BU9.
272. EMMANUEL SAEZ, STRIKING IT RICHER: THE EVOLUTION OF TOP INCOMES IN THE UNITED STATES 2 (Aug. 5, 2009), http://elsa.berkeley.edu/~saez/saez- UStopincomes-2007.pdf.
273. See id. at 5 fig.1.
274. See id. at 6 fig.2.
275. Press Release, United Nations Univ.-World Inst. for Dev. Econ. Research, Pioneering Study Shows Richest Two Percent Own Half World Wealth (Dec. 5, 2006), available at http://www.wider.unu.edu/events/past-events/2006-events/en-GB/05- 12-2006/.
276. Id.
277. See Lawrence Lessig, What Everybody Knows and What Too Few Accept, 123 HARV. L. REV. 104, 104-11 (2009) (discussing the relationship between economic power and judicial decisionmaking-and how it might be better managed).
278. See, e.g., John Clarke, Pessimism Versus Populism: The Problematic Politics of Popular Culture, in FOR FUN AND PROFIT: THE TRANSFORMATION OF LEISURE INTO CONSUMPTION 28, 30-34 (Richard Butsch ed., 1990);
279. Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 CAL. L. REV. 125, 140 (1993).
280. See Ronald Dworkin, What is Equality? Part 1: Equality of Welfare, 10 PHIL. & PUB. AFF. 185, 186 (1981);
281. Ronald Dworkin, What is Equality? Part 2: Equality of Resources, 10 PHIL. & PUB. AFF. 283 passim (1981).
282. See JOHN RAWLS, A THEORY OF JUSTICE 60-65, 298-303 (rev. ed. 1999);
283. JOHN RAWLS, JUSTICE as FAIRNESS: A RESTATEMENT 42-50, 57-61 (Erin Kelly ed., 2001).
284. See Derek Parfit, Lindley Lecture at the University of Kansas: Equality or Priority? (Nov. 21, 1991). This lecture has been reproduced in its entirety in THE IDEAL OF EQUALITY 81, 101-16 (Matthew Clayton & Andrew Williams eds., 2000).
285. See Harry Frankfurt, Equality as a Moral Ideal, 98 ETHICS 21, 21-22 (1987).
286. Molly Shaffer Van Houweling, Distributive Values in Copyright, 83 TEX. L. REV. 1535, 1543-45, 1568-69 (2005).
287. Id. at 1569.
288. See Chander & Sunder, supra note 28, at 602-09.
289. Id. at 609.
290. See id. at 602-09.
291. Among the many works that have explored this theme are BENKLER, supra note 80, at ch. 8;
292. FISHER, supra note 22, at ch. 1;
293. JOHN FISKE, TELEVISION CULTURE 236-39 (1987);
294. NEIL NETANEL, COPYRIGHT'S PARADOX (2008);
295. Jack M. Balkin, Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society, 79 N. Y. U. L. REV. 1 (2004);
296. Oren Bracha, Standing Copyright Law on Its Head? The Googlization of Everything and the Many Faces of Property, 85 TEX. L. REV. 1799 (2007);
297. Chander & Sunder, supra note 28;
298. Rosemary Coombe, Objects of Property and Subjects of Politics: Intellectual Property Laws and Democratic Dialogue, 69 TEX. L. REV. 1853 (1991);
299. Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace, 14 CARDOZO ARTS & ENT. L. J. 215 (1996);
300. William W. Fisher III, Property and Contract on the Internet, 73 CHI.-KENT L. REV. 1203 (1998);
301. Sonia Katyal, Semiotic Disobedience, 84 WASH. U. L. R. 489 (2006);
302. David Lange, At Play in the Fields of the Word: Copyright and the Construction of Authorship in the Post-Literate Millennium, 55 LAW & CONTEMP. PROBS. 139 (1992);
303. Joseph P. Liu, Owning Digital Copies: Copyright Law and the Incidents of Copy Ownership, 42 WM. & MARY L. REV. 1245 (2001);
304. Madow, supra note 192, at 146;
305. 3, 59 STAN. L. REV. 257 (2006).
306. Posting of My Heart's in Accra to http://www.ethanzuckerman. com/blog/2008/11/10/innovation-from-constraint-the-extended-dance-mix/ (Nov. 10, 2008, 16:45 EST).
307. Id.
308. Id.
309. Id.
310. Id.
311. See Mark J. Roe, Chaos and Evolution in Law and Economics, 109 HARV. L. REV. 641, 643-44 (1996);
312. Adrian Vermeule, System Effects and the Constitution, 123 HARV. L. REV. 4, 52 n. 176 (2009).
313. An example of a successful philanthropic effort that does not conform (at least, does not conform fully) to Zuckerman's guidelines is the development by a group of Danish and African engineers of a biogas stove and lamp that can be used by poor African and Southeast Asian families to cook food and light their homes. See Superflex, http://www.superflex.net/tools/supercopy/lamp.shtml (last visited Apr. 11, 2010) (biogas lamp);
314. Superflex, http://www.superflex.net/tools/supergas/ (last visited Apr. 11, 2010) (biogas stove). The Superflex project that developed and produces the stove and lamp more closely resembles the failed German plant-oil initiative than the successful biomass charcoal initiative.
315. Id. I am grateful to Anupam Chander and Madhavi Sunder for alerting me to the Superflex project-although I am not sure either of them would interpret it as I do.
316. See RONALD DWORKIN, A MATTER OF PRINCIPLE 191-204 (1985) (describing liberalism as concerned with a view of equality that "supposes that political decisions must be, so far as is possible, independent of any particular conception of the good life");
317. LOUIS KAPLOW & STEVEN SHAVELL, FAIRNESS VERSUS WELFARE 15-16 (2002) ("The hallmark of welfare economics is that policies are assessed exclusively in terms of their effects on the well-being of individuals.").
318. Cf. Fisher, supra note 158, at 172, 192-94.
319. William W. Fisher III, Reconstructing the Fair use Doctrine, 101 HARV. L. REV. 1661, 1746-51 (1988) (citations omitted).
320. In addition to these lines, several individual works have been published that explore or defend compatible conceptions of human flourishing.
321. See, e.g., Andrew Sayer, Contributive Justice and Meaningful Work, 15 RES PUBLICA 1 (2009). Within legal scholarship, an important example is Yochai Benkler's Wealth of Networks, which elaborates ideals of autonomy and community that are fully consistent with the vision offered here-despite Benkler's stubborn insistence on characterizing his outlook as a form of "liberalism."
322. See BENKLER, supra note 80, at chs. 5, 10. An ambitious forthcoming book by Madhavi Sunder will apply a compatible theory to the law of intellectual property.
323. See Madhavi Sunder, IP: YOUTUBE, MYSPACE, OUR CULTURE (forthcoming 2010).
324. See Edward L. Deci & Richard M. Ryan, The "What" and "Why" of Goal Pursuits: Human Needs and the Self-Determination of Behavior, 11 PSYCHOL. INQUIRY 227, 231 (2000) [hereinafter Deci & Ryan, What and Why].
325. The body of work on which these conclusions are based includes EDWARD L. DECI & RICHARD M. RYAN, INTRINSIC MOTIVATION AND SELF-DETERMINATION IN HUMAN BEHAVIOR (1985);
326. Roy F. Baumeister & Mark R. Leary, The Need to Belong: Desire for Interpersonal Attachments as a Fundamental Human Motivation, 117 PSYCHOL. BULL. 497 (1995);
327. Edward L. Deci & Richard M. Ryan, The Empirical Exploration of Intrinsic Motivational Processes, in 13 ADVANCES IN EXPERIMENTAL SOCIAL PSYCHOLOGY 39 (Leonard Berkowitz ed., 1980);
328. Edward L. Deci & Richard M. Ryan, A Motivational Approach to Self-Integration in Personality, 38 PERSP. ON MOTIVATION 237 (1990);
329. Richard M. Ryan & James P. Connell, Perceived Locus of Causality and Internalization: Examining Reasons for Acting in Two Domains, 57 J. PERSONALITY & SOC. PSYCHOL. 749 (1989);
330. Kennon M. Sheldon & Andrew J. Elliot, Goal Striving, Need Satisfaction, and Longitudinal Well-Being: The Self-Concordance Model, 76 J. PERSONALITY & SOC. PSYCHOL. 482 (1999).
331. See Richard M. Ryan & Edward L. Deci, Self-Determination Theory and the Facilitation of Intrinsic Motivation, Social Development, and Well-Being, 55 Am. Psychol. 68, 69-71 (2000).
332. See Richard M. Ryan & Edward L. Deci, Active Human Nature: Self-Determination Theory and the Promotion and Maintenance of Sport, Exercise, and Health, in INTRINSIC MOTIVATION AND SELF-DETERMINATION IN EXERCISE AND SPORT 1, 2-6, 10-13 (Martin S. Hagger & Nikos L. D. Chatzisarantis eds., 2007);
333. Hyungshim Jang, Supporting Students' Motivation, Engagement, and Learning During an Uninteresting Activity, 100 J. EDUC. PSYCHOL. 798, 806-08 (2008);
334. Richard M. Ryan et al., Facilitating Health Behaviour Change and Its Maintenance: Interventions Based on Self-Determination Theory, 10 EUR. HEALTH PSYCHOL. 2, 2-5 (2008).
335. Deci & Ryan, What and Why, supra note 214, at 248;
336. see also Kennon M. Sheldon & Lawrence S. Krieger, Understanding the Negative Effects of Legal Education on Law Students: A Longitudinal Test of Self-Determination Theory, 33 PERSONALITY & SOC. PSYCHOL. BULL. 883, 884 (2007) ("[T]he negative motivational effects [researchers] demonstrated were likely caused by the controlling and autonomy-denying features of legal education. ").
337. Cf. Note, Designing the Public Domain, 122 HARV. L. REV. 1489, 1496-503 (2009) (using self-determination theory to illuminate competing arguments concerning the proper shape of the public domain).
338. See Martha C. Nussbaum, Constitutions and Capabilities: "Perception" Against Lofty Formalism, 121 HARV. L. REV. 4, 6 (2006).
339. Id. at 10.
340. See AMARTYA SEN, DEVELOPMENT as FREEDOM 288 (1999).
341. See MARTHA C. NUSSBAUM, FRONTIERS OF JUSTICE: DISABILITY, NATIONALITY, SPECIES MEMBERSHIP 76-78 (2006);
342. see also MARTHA C. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT: THE CAPABILITIES APPROACH 78-80 (2000) [hereinafter Nussbaum, Human Development];
343. Nussbaum, supra note 219, at 13-16. For a provocative effort to combine Nussbaum's argument with postmodern critical theory and the "strict constructivist theory of technology" in a way that illuminates copyright law
344. see Cohen, supra note 146, at 1159-70, 1183-89.
345. See, e.g., Deci & Ryan, What and Why, supra note 214, at 231.
346. NUSSBAUM, HUMAN DEVELOPMENT, supra note 222, at 80.
347. SEN, supra note 221, at 288.
348. GEORGE KATEB, THE INNER OCEAN: INDIVIDUALISM AND DEMOCRATIC CULTURE 90 (1992).
349. Jonathan Zittrain makes a similar point when explaining one of the benefits of "generative" products: [T]here is a unique joy to be had in building something, even if one is not the best craftsperson. This is a value best appreciated by experiencing it; those who demand proof may not be easy to persuade. Fortunately, there are many ways in which people have a chance to build and contribute. Many jobs demand intellectual engagement, which can be fun for its own sake. People take joy in rearing children: teaching, interacting, guiding. They can also immerse themselves in artistic invention or software coding.
350. ZITTRAIN, supra note 106, at 90.
351. See LESSIG, supra note 1, at 87.
352. Id. John Palfrey and Urs Gasser make a similar point-and connect it to a theory of human flourishing: The vast majority of Digital Natives are dreaming of neither fame nor fortune when they create online. Often, they simply want to express themselves, just as human beings have wanted to do since they first began painting in caves more than 30, 000 years ago. The desire to express one's own beliefs and opinions-to share them with others-is central to human nature.
353. PALFREY & GASSER, supra note 35, at 124.
354. See ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF AMERICAN COMMUNITY 506 (2000) (using the term to describe the social disconnectedness that has come to characterize much of American culture).
355. Tushnet, supra note 24, at 657.
356. Absolute Astronomy, Lowriders, http://www.absoluteastronomy.com/topics/ Lowrider (last visited Apr. 11, 2010).
357. Rosen, supra note 117, at 382.
358. See, e.g., Frank Michelman, Law's Republic, 97 YALE L. J. 1493, 1494-99 (1988);
359. Cass R. Sunstein, Interest Groups in American Public Law, 38 STAN. L. REV. 29, 68-85 (1985).
360. See supra text accompanying note 212. A recent survey suggests that, in the United States, access to meaningful work is diminishing.
361. See Press Release, The Conference Board, U. S. Job Satisfaction at Lowest Level in Two Decades (Jan. 5, 2010), available at http://www.conference-board. org/utilities/pressDetail.cfm?press-ID=3820.
362. See JEREMY BENTHAM, THE RATIONALE OF REWARD 206 (1825).
363. See, e.g., PIERRE BOURDIEU, PRACTICAL REASON 26-27 (1994) (discussing this phenomenon in the context of education);
364. JON ELSTER, SOUR GRAPES: STUDIES IN THE SUBVERSION OF RATIONALITY 109 (1983) ("[W]hy should individual want satisfaction be the criterion of justice and social choice when individual wants themselves may be shaped by a process that preempts the choice?");
365. Sayer, supra note 213, at 11-12;
366. Cass R. Sunstein, Legal Interference with Private Preferences, 53 U. CHI. L. REV. 1129, 1135, 1138-39, 1146-50 (1986).
367. For the theory of paternalism upon which any assertion of this sort must depend, see Fisher, supra note 212, at 1762-66.
368. See id. at 1768.
369. But cf. Cohen, supra note 146, at 1203-04 (arguing that we should abandon the fair use framework altogether and instead narrow a copyright owner's exclusive right to prepare derivative works so as to exclude from its ambit (a) noncommercial fan fiction and (b) commercial sequels that do not "continu[e] the narrative voice established by the original").
370. See Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 579 (1994) ("The central purpose of this investigation is to see... whether the new work merely supersedes the objects of the original creation... or instead adds something new, with a further purpose or different character...." (citations and internal quotation marks omitted)).
371. For arguments along these lines in the context of cultural goods, see Netanel, supra note 202, at 190-93;
372. Balkin, supra note 202, at 43-54;
373. cf. Note, "Recoding" and the Derivative Works Entitlement: Addressing the First Amendment Challenge, 119 HARV. L. REV. 1488, 1506-09 (2006) (advocating adoption of a "cultural saturation exception to the right to control derivative works" in order to reconcile First Amendment concerns and the general objectives of copyright law).
374. Patentgesetz [PatG] [Patent Act], Dec. 16, 1980, legal gazette as amended, § 11 (2) (Germany), available at http://www.wipo.int/clea/en/text- html.jsp?lang=en&id=984 ("The effect of a patent shall not extend to... acts done privately and for non-commercial purposes.");
375. Patents Act, 1977, as amended, c. 37, § 60 (5) (a) (Eng.), available at http://www.wipo.int/clea/en/text-pdf.jsp?lang=EN&id=1720 (stating that an activity that otherwise "would constitute an infringement of a patent for an invention shall not do so if... it is done privately and for purposes which are not commercial"). For the argument that the Japanese patent system tacitly recognizes a similar exemption, see Talha Syed, Research Exemptions to Patent Rights: Law and Policy in Four Jurisdictions (The U. S., Germany, Japan & the U. K.) 46-47 (2010) (unpublished manuscript, on file with author).
376. See Strandburg, supra note 36, at 494-95.
377. Cf. Quanta Computer, Inc. v. LG Elecs., Inc., 128 S. Ct. 2109, 2122 (2008) (limiting in other respects the capacity of sellers of patented materials to use contractual provisions to narrow the scope of the first sale doctrine).
378. See FISHER, supra note 22, at 153;
379. Dan L. Burk & Julie E. Cohen, Fair use Infrastructure for Rights Management Systems, 15 HARV. J. L. & TECH. 41, 54-70 (2001).
380. See FISHER, supra note 22, at ch. 6;
381. Neil Netanel, Impose a Noncommercial use Levy to Allow Free Peer-to-Peer File Sharing, 17 HARV. J. L. & TECH. 1, 35-59 (2003).