Copyright's asymmetric uncertainty

University of Chicago Law Review

Volumn 79, Issue 1, 2012, Pages 333-386

  Horowitz, Steven J ^a  

^a SIDLEY AUSTIN LLP   (United States)

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EID: 84862583421     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (353)

1. See David Fagundes, Crystals in the Public Domain, 50 BC L Rev 139, 161-74 (2009) (criticizing scholars who prefer "muddy" entitlements and advocating greater certainty through "crystalline" entitlements);
2. Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity 185 (Penguin 2004) ("The consequence of this legal uncertainty, tied to these extremely high penalties, is that an extraordinary amount of creativity will either never be exercised, or never be exercised in the open. ");
3. David Nimmer, "Fairest of Them All" and Other Fairy Tales of Fair Use, 66 L & Contemp Probs 263, 280 (Winter-Spring 2003) ("Basically, had Congress legislated a dartboard rather than the particular four fair use factors embodied in the Copyright Act, it appears that the upshot would be the same.").
4. Atari, Inc v North American Philips Consumer Electronics Corp, 672 F2d 607, 614 (7th Cir 1982).
5. See also Amy B. Cohen, Masking Copyright Decisionmaking: The Meaninglessness of Substantial Similarity, 20 UC Davis L Rev 719, 722-23 (1987);
6. Jessica Litman, The Public Domain, 39 Emory L J 965, 1005 & n 246 (1990).
7. 17 USC § 107 (outlining four factors for determining when unlicensed use of a copyrighted work will be protected from liability).
8. 17 USC § 504 (c) (2).
9. See Pamela Samuelson and Tara Wheatland, Statutory Damages in Copyright Law: A Remedy in Need of Reform, 51 Wm & Mary L Rev 439, 458-59 (2009).
10. See, for example, Fagundes, 50 BC L Rev at 143-44, 150-60 (cited in note 1);
11. Thomas F. Cotter, Fair Use and Copyright Overenforcement, 93 Iowa L Rev 1271, 1283-91 (2008);
12. Gideon Parchomovsky and Kevin A. Goldman, Fair Use Harbors, 93 Va L Rev 1483, 1497-1502 (2007);
13. Michael W. Carroll, Fixing Fair Use, 85 NC L Rev 1087, 1092-1122 (2007);
14. Lessig, Free Culture at 184-99 (cited in note 1).
15. See also Ned Snow, Proving Fair Use: Burden of Proof as Burden of Speech, 31 Cardozo L Rev 1781, 1791-1806 (2010) (analyzing this assumed effect as a First Amendment problem). Consider also Nimmer, 66 L & Contemp Probs at 265-66 (cited in note 1).
16. This hypothetical is taken from the story of Shepard Fairey, the artist whose "Hope" poster depicting then-candidate Barack Obama has become iconic. See Randy Kennedy, Artist Sues the A. P. over Obama Image, NY Times C1 (Feb. 10, 2009) (describing the declaratory judgment action Fairey filed against the Associated Press to assert that his poster design was not infringing).
17. Folsom v Marsh, 9 F Cas 342, 348 (CCD Mass 1841) (holding that, in order to determine if a copyright has been infringed, one must look to the nature and objects of the selection made, quantity and value of materials used, and how it might diminish the market value of the original).
18. *2 (Oct. 21, 2009), online at http://www.slate.com/id/2233152 (visited Nov. 3, 2011).
19. Besides Tim Wu's ambivalence, see id, consider the disagreement between David Post and Jane Ginsburg. See David Post, AP, Copyright Infringement, and the Hope Poster, Volokh Conspiracy (Feb. 11, 2009), online at http://volokh.com/archives/archive-2009-02-08-2009-02-14.shtml#1234399793 (visited Nov. 3, 2011).
20. See US Const Art I, § 8, cl 8; William M. Landes and Richard A. Posner, The Economic Structure of Intellectual Property Law 37-165 (Harvard 2003) (providing a detailed economic analysis of copyright law);
21. Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom 35-58 (Yale 2006) (outlining the basic economics of information production).
22. See also William Fisher, Theories of Intellectual Property, in Stephen R. Munzer, ed, New Essays in the Legal and Political Theory of Property 168, 168-76 (Cambridge 2001) (describing the competing justificatory theories of copyright law and noting that the economic-utilitarian theory is the most popular one).
23. See Benkler, The Wealth of Networks at 41-48 (cited in note 10).
24. See David McGowan, Copyright Nonconsequentialism, 69 Mo L Rev 1, 36-38 (2004).
25. See also Steven J. Horowitz, Note, Competing Lockean Claims to Virtual Property, 20 Harv J L & Tech 443, 450-57 (2007) (applying Lockean property theory);
26. Fisher, Theories of Intellectual Property at 168-76 (cited in note 10) (surveying intellectual property theory).
27. See also generally Justin Hughes, The Philosophy of Intellectual Property, 77 Georgetown L J 287 (1988) (same).
28. There are a variety of production strategies for copyright: some rely on exclusion, others are indifferent, and others are even hindered by copyright. See Benkler, The Wealth of Networks at 41-48 (cited in note 10);
29. Yochai Benkler, Coase's Penguin, or, Linux and The Nature of the Firm, 112 Yale L J 369, 375-81 (2002) (explaining why peer production is efficient for addressing particular kinds of problems in light of the diverse motivations of contributors).
30. Pub L No 94-553, 90 Stat 2541(1976), codified as amended at 17 USC § 101 et seq.
31. Copyright Act § 102 (a), 17 USC § 102 (a) (describing the types of material that fall within the ambit of copyright protection).
32. See Roger E. Schechter and John R. Thomas, Intellectual Property: The Law of Copyrights, Patents and Trademarks § 5.3 at 89-91 (West 2003). Among the most significant benefits is that registration is a prerequisite for statutory damages or attorney's fees.
33. See 17 USC § 412.
34. See also Shira Perlmutter, Freeing Copyright from Formalities, 13 Cardozo Arts & Enter L J 565, 569-87 (1995) (arguing that conditioning benefits on registration is a vestige of pre-Berne Convention Implementation Act law and should be rejected).
35. See Feist Publications, Inc v Rural Telephone Service Co, 499 US 340, 346 (1991) (requiring "a modicum of creativity"). See also id at 345-46: To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, "no matter how crude, humble or obvious" it might be.... [T]wo poets, each ignorant of the other, compose identical poems. Neither work is novel, yet both are original and, hence, copyrightable.
36. See id at 361-64 (denying copyright protection for a telephone book); Matthew Bender & Company v West Publishing Co, 158 F3d 674, 683-89 (2d Cir 1998) (holding that West was unable to assert a copyright in its case reports because the reports lacked a "modicum of creativity", despite alleged originality in the arrangement of information and the selection and presentation of citations).
37. See 17 USC § 102 ("Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression. ") (emphasis added).
38. See also MAI Systems Corp v Peak Computer, 991 F2d 511, 518 (9th Cir 1993) (holding that loading copyrighted software into RAM constitutes a copyright violation because a copy in RAM is "fixed" in the sense that it is sufficiently permanent to be perceived or reproduced);
39. Aaron Perzanowski, Fixing RAM Copies, 104 Nw U L Rev 1067, 1070-80 (2010) (recognizing that most courts adopt the view that RAM copies are fixed for purposes of the Copyright Act, and discussing criticisms of this view).
40. Pub L No 100-568, 102 Stat 2853(1988), codified in various sections of Title 17.
41. Some commentators, however, advocate for a return to increased formalities in copyright law. See James Gibson, Once and Future Copyright, 81 Notre Dame L Rev 167, 212-42 (2005);
42. Christopher Sprigman, Reform (aliz) ing Copyright, 57 Stan L Rev 485, 545-68 (2004).
43. But see Jane C. Ginsburg, The U. S. Experience with Mandatory Copyright Formalities: A Love/Hate Relationship, 33 Colum J L & Arts 311, 342-48 (2010) (arguing that reintroducing formalities would burden only uninformed copyright holders).
44. 17 USC § 410 (c).
45. 17 USC § 412.
46. And too bad it isn't, argue William Landes and Judge Richard Posner, for renewal requirements would enlarge the public domain even if copyright protection were indefinitely renewable. See generally William M. Landes and Richard A. Posner, Indefinitely Renewable Copyright, 70 U Chi L Rev 471 (2003) (distinguishing between perpetual and indefinite copyrights and arguing that the latter, by requiring copyright holders to renew their copyright at certain intervals, will allow many protected expressions to enter the public domain earlier than the present system).
47. See Sonny Bono Copyright Term Extension Act of 1998 (CTEA), Pub L No 105-298, 112 Stat 2827, codified in various sections of Title 17.
48. 17 USC § 302 (a).
49. Congress extended copyright term from life-plus-fifty to life-plusseventy in the CTEA, which was upheld against constitutional challenge in Eldred v Ashcroft, 537 US 186, 199-222 (2003).
50. C. Scott Hemphill and Jeannie Suk's proposal to extend intellectual property protection to fashion focuses on the evils of literal and close copies, and they explain that close copies are meant to substitute for the original work. See C. Scott Hemphill and Jeannie Suk, The Law, Culture, and Economics of Fashion, 61 Stan L Rev 1147, 1170-95 (2009).
51. But see Kal Raustiala and Christopher Sprigman, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, 92 Va L Rev 1687, 1717-34 (2006) (arguing that such protection is unnecessary).
52. See Mark A. Lemley, Ex Ante versus Ex Post Justifications for Intellectual Property, 71 U Chi L Rev 129, 131 (2004) ("We grant creators exclusive rights in their works-permitting them to charge a supracompetitive price-to encourage them to make such works in the first place.");
53. William F. Patry and Richard A. Posner, Fair Use and Statutory Reform in the Wake of Eldred, 92 Cal L Rev 1639, 1645 (2004) ("[C]opyright law enables the copyright owner to prevent anyone from competing against him by selling identical copies of the copyrighted work, and so if the work is popular he will be able to obtain a supracompetitive return. ").
54. Derivative works can be lucrative-the Harry Potter brand was estimated to be worth more than $15 billion in 2007, only $9 billion of which was from book sales. See Beth Snyder Bulik, Harry Potter, the $15 Billion Man, Advertising Age (July 16, 2007), online at http://adage.com/article/news/ harry-potter-15-billion-man/119212 (visited Nov. 5, 2011). But the vast majority of novels make money, if at all, through sales as novels.
55. 17 USC § 106 (1) (providing the exclusive right "to reproduce the copyrighted work in copies or phonorecords").
56. See, for example, Reyher v Children's Television Workshop, 533 F2d 87, 90 (2d Cir 1976);
57. Universal Athletic Sales Co v Salkeld, 511 F2d 904, 907 (3d Cir 1975).
58. For a useful description of the test and its vagueness, see Peter Pan Fabrics v Martin Weiner Corp, 274 F2d 487, 489 (2d Cir 1960).
59. See also sources cited in note 2; Fagundes, 50 BC L Rev at 158-60 (cited in note 1).
60. See, for example, Arnstein v Broadcast Music, Inc, 137 F2d 410, 412 (2d Cir 1943).
61. 17 USC § 504 (a) (1), (b).
62. 17 USC § 504 (b).
63. 17 USC § 504 (c) (1)-(2). On the disconnect between actual harm and statutory damages in copyright
64. see Samuelson and Wheatland, 51 Wm & Mary L Rev at 461-63 (cited in note 4);
65. J. Cam Barker, Note, Grossly Excessive Penalties in the Battle against Illegal File-Sharing: The Troubling Effects of Aggregating Minimum Statutory Damages for Copyright Infringement, 83 Tex L Rev 525, 545-56 (2004).
66. Courts may "award a reasonable attorney's fee to the prevailing party." 17 USC § 505.
67. See also Fogerty v Fantasy, Inc, 510 US 517, 533-34 (1994) (holding that prevailing plaintiffs and defendants must be treated alike in awarding fees under the Act).
68. See Jeffrey Edward Barnes, Comment, Attorney's Fee Awards in Federal Copyright Litigation after Fogerty v. Fantasy: Defendants Are Winning Fees More Often, but the New Standard Still Favors Prevailing Plaintiffs, 47 UCLA L Rev 1381, 1390 (2000) (finding that prevailing plaintiffs were awarded attorney's fees in 89 percent of cases).
69. 17 USC § 502 (injunctions);
70. USC § 503 (impounding and destruction).
71. *18 (1st Cir).
72. See Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy 51-83 (Penguin 2008);
73. William W. Fisher III, The Implications for Law of User Innovation, 94 Minn L Rev 1417, 1418-30 (2010);
74. Anupam Chander and 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).
75. See also Edward Lee, Warming Up to User-Generated Content, 2008 U Ill L Rev 1459, 1543-47.
76. See, for example, Lee, 2008 U Ill L Rev at 1509-13 (cited in note 43)
77. A well-known example is the visual artist Jeff Koons, who incorporates popular media and advertising into his work, which has been described as "appropriation art." Contrast Blanch v Koons, 467 F3d 244, 246-48, 250-59 (2d Cir 2006) (determining that Koons's use of a copyrighted photograph in collage painting was fair use)
78. with Rogers v Koons, 960 F2d 301, 308-12 (2d Cir 1992) (finding that Koons's "String of Puppies" sculpture infringed copyright in "Puppies" photograph).
79. See Steven A. Hetcher, Using Social Norms to Regulate Fan Fiction and Remix Culture, 157 U Pa L Rev 1869, 1869-74 (2009);
80. Chander and Sunder, 95 Cal L Rev at 611-17 (cited in note 43).
81. A recent example involved Fredrik Colting's 60 Years Later: Coming through the Rye, the story of a seventy-six-year-old Holden Caulfield from J. D. Salinger's The Catcher in the Rye. See Salinger v Colting, 607 F3d 68, 71-72 (2d Cir 2010). The entire hip-hop genre is another example.
82. See Neil Weinstock Netanel, Copyright's Paradox 19-23 (Oxford 2008).
83. Works whose owners cannot be identified or located are called "orphan works." See Jerry Brito and Bridget Dooling, An Orphan Works Affirmative Defense to Copyright Infringement Actions, 12 Mich Telecomm & Tech L Rev 75, 77-86 (2005). The problem of orphan works has been exacerbated by copyright term extension-sixty-five years after the death of the author, it becomes much harder in most cases to identify the copyright holder. In the wake of Eldred, Congress sought advice from the Copyright Office on the orphan works problem, and the office concluded that legislative action was necessary.
84. US Copyright Office, Report on Orphan Works 92-93 (Jan 2006), online at http://www.copyright.gov/orphan/orphanreport-full.pdf (visited Nov. 5, 2011). Orphan works have received renewed attention in light of the Google Book Search settlement.
85. See, for example, Randal C. Picker, The Google Book Search Settlement: A New Orphan-Works Monopoly?, 5 J Competition L & Econ 383, 391-94 (2009).
86. Mazer v Stein, 347 US 201, 217-18 (1954).
87. See also 17 USC § 102 (b).
88. Harper & Row, Publishers, Inc v Nation Enterprises, 471 US 539, 556 (1985)
89. quoting decision below, Harper & Row Publishers v Nation Enterprises, 723 F2d 195, 203 (2d Cir 1983).
90. For a discussion of this definitional balance, see generally Steven J. Horowitz, A Free Speech Theory of Copyright, 2009 Stan Tech L Rev 2, online at http://stlr.stanford.edu/pdf/horowitz-free-speech-theory.pdf (visited Nov. 5, 2011).
91. Baker v Selden, 101 US 99, 101-07 (1879). Today, the idea-expression dichotomy is codified in 17 USC § 102 (b).
92. I refer to Plato's theory of forms, which describes nonmaterial ideal forms that represent the highest form of reality, to be contrasted with the particulars of the sensible world. See Plato, The Republic 233-39 (M. Walter Dunne 1901) (Henry Davis, trans) (O. Leigh, ed).
93. See also Richard Kraut, Introduction to the Study of Plato, in Richard Kraut, ed, The Cambridge Companion to Plato 1, 10-12 (Cambridge 1992).
94. Nichols v Universal Pictures Corp, 45 F2d 119, 121 (2d Cir 1930).
95. Tom Stoppard, Rosencrantz and Guildenstern Are Dead (Grove 1967).
96. On this, see Post, AP, Copyright Infringement, and the Hope Poster (cited in note 9);
97. Randy Picker, Fairey v Associated Press: Yes He Can, The University of Chicago Law School Faculty Blog (Feb. 10, 2009), online at http://uchicagolaw. typepad.com/faculty/2009/02/fairey-vassociated-press-yes-he-can. html (visited Nov. 5, 2011).
98. See, for example, Burrow-Giles Lithographic Co v Sarony, 111 US 53, 60 (1884) (holding that a photographer's picture of Oscar Wilde was copyrightable due to the "harmonious, characteristic, and graceful" quality that was created by posing Wilde in a manner that was the photographer's "own original mental conception").
99. See Henry E. Smith, Intellectual Property as Property: Delineating Entitlements in Information, 116 Yale L J 1742, 1799-1806 (2007).
100. See also Henry E. Smith, Exclusion versus Governance: Two Strategies for Delineating Property Rights, 31 J Legal Stud S453, S455-56 (2002).
101. See Smith, 116 Yale L J at 1785 (cited in note 57).
102. The Copyright Royalty Board has set the rate at the greater of 9.1 cents per copy or 1.75 cents per minute of playing time. 37 CFR § 385.3 (a).
103. 17 USC § 115 (a) (1). For a discussion of the distinction between dramatic and nondramatic works
104. see Howard B. Abrams, 1 The Law of Copyright§ 2:39 at 2-128 (West 2010).
105. 17 USC § 115 (b).
106. 17 USC § 106 (4).
107. For a recent analysis of the public performance right, see Gary Myers and George Howard, The Future of Music: Reconfiguring Public Performance Rights, 17 J Intel Prop L 207, 218-24 (2010).
108. There is no general public performance right in sound recordings. 17 USC § 106 (4).
109. To complicate things further, Congress enacted the Digital Performance Right in Sound Recordings Act of 1995, Pub L No 104-39, 109 Stat 336
110. codified as amended in various sections of Title 17, which among other things provides the exclusive right "to perform [copyrighted sound recordings] publicly by means of a digital audio transmission. " 17 USC § 106 (6).
111. See also Shourin Sen, The Denial of a General Performance Right in Sound Recordings: A Policy That Facilitates Our Democratic Civil Society?, 21 Harv J L & Tech 233, 236 (2007).
112. 17 USC § 110 (5) (B). This exception even limits the size of televisions.
113. See 17 USC § 110 (5) (B) (i) (II).
114. Even traditional property law has exceptions. For example, the general right to exclude is relaxed in situations of necessity. See Ploof v Putnam, 71 A 188 (Vt 1908).
115. With apologies to H. L. A. Hart, see H. L. A. Hart, Positivism and the Separation of Law and Morals, 71 Harv L Rev 593, 607 (1958).
116. Lon Fuller explains that there is no context-independent meaning of the words we use to structure legal entitlements. See Lon L. Fuller, Positivism and Fidelity to Law-A Reply to Professor Hart, 71 Harv L Rev 630, 662 (1958) (explaining that words "have a penumbra of meaning which, unlike the core, will vary from context to context").
117. This point is the legal realists'. See generally, for example, Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes Are to Be Construed, 3 Vand L Rev 395 (1950).
118. Hercules is Ronald Dworkin's ideal judge who constructs theories to fit and justify the law in order to arrive at the right answer in hard cases. He is "a lawyer of superhuman skill, learning, patience and acumen. " See Ronald Dworkin, Hard Cases, 88 Harv L Rev 1057, 1083 (1975).
119. Pub L 101-650, 104 Stat 5128(1990), codified in various sections of Title 17.
120. This conflict is recognized in William F. Patry, 5 Patry on Copyright § 16:35 at 16-70 to 16-71 (West 2011).
121. See also Geri J. Yonover, The Precarious Balance: Moral Rights, Parody, and Fair Use, 14 Cardozo Arts & Enter L J 79, 99-103 (1996).
122. VARA § 603, 17 USC § 106A (a).
123. Visual Artists Rights Act of 1990, HR Rep No 101-514, 101st Cong, 2d Sess 22(1990), reprinted in 1990 USCCAN 6915, 6932.
124. See John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum L Rev 673, 684-89 (1997). (Pubitemid 127436838)
125. Adrian Vermeule explains why even judges are incompetent to deduce rules from legislative history. See Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 Stan L Rev 1833, 1879 (1998). (Pubitemid 128426616)
126. See Barton Beebe, An Empirical Study of U. S. Copyright Fair Use Opinions, 1978-2005, 156 U Pa L Rev 549, 565 n 64 (2008) (noting that between 2000 and 2005 there were 3.3 law review articles with "fair use" in their titles for every judicial opinion on the subject).
127. Lessig, Free Culture at 187 (cited in note 1).
128. See also R. Polk Wagner, The Perfect Storm: Intellectual Property and Public Values, 74 Fordham L Rev 423, 427 (2005) (describing the "'zone of uncertainty' between 'fair' and 'unfair' uses in the copyright context").
129. See Pierre N. Leval, Toward a Fair Use Standard, 103 Harv L Rev 1105, 1105 (1990) ("[T]hroughout the development of the fair use doctrine, courts had failed to fashion a set of governing principles or values.").
130. See William W. Fisher III, Reconstructing the Fair Use Doctrine, 101 Harv L Rev 1659, 1686-92 (1988).
131. Not everyone thinks fair use is so hopeless. See, for example, Pamela Samuelson, Unbundling Fair Uses, 77 Fordham L Rev 2537, 2541-43 (2009) (arguing that it is possible to predict fair use outcomes by organizing cases into "policy-relevant clusters");
132. Beebe, 156 U Pa L Rev at 622 (cited in note 77) ("Nevertheless, as a whole, the mass of nonleading cases has shown itself to be altogether worthy of being followed."). Even if Pamela Samuelson and Barton Beebe alone among experts have cracked fair use, there isn't much hope for users.
133. 17 USC § 107.
134. 17 USC § 107 (1) - (4). It isn't clear whether the factors guide the analysis or whether judges reach a conclusion on fairness and then explain it in terms of the factors. See Nimmer, 66 L & Contemp Probs at 281 (cited in note 1).
135. Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U Chi Legal F 207, 208 (1996).
136. See, for example, Harper & Row, 471 US at 566;
137. Robinson v Random House, Inc, 877 F Supp 830, 842 & n 4, 843 (SDNY 1995).
138. But see William F. Patry, Patry on Fair Use § 6.5 at 442-49 (West 2010) (arguing that the fourth factor is no more important than any of the others).
139. See, for example, Campbell v Acuff-Rose Music, Inc, 510 US 569, 591-92 (1994) (giving the example of a "scathing theater review" as something that doesn't "produce a harm cognizable under the Copyright Act").
140. "The mere absence of measurable pecuniary damage does not require a finding of fair use." Marcus v Rowley, 695 F2d 1171, 1177 (9th Cir 1983) (finding that copying pages from a recipe book for a classroom project did not qualify as a fair use even though it had no effect on the market for the book).
141. Leval, 103 Harv L Rev at 1124 (cited in note 79) (explaining that the importance of the market effect test has been overstated because every fair use adversely affects what otherwise would have the market for licenses or derivative uses).
142. Consider Menard, Inc v Commissioner of Internal Revenue, 560 F3d 620, 622-23 (7th Cir 2009) (Posner) ("Multifactor tests with no weight assigned to any factor are bad enough from the standpoint of providing an objective basis for a judicial decision; multifactor tests when none of the factors is concrete are worse.") (citations omitted).
143. See sources cited in note 84. See also Beebe, 156 U Pa L Rev at 621 (cited in note 77): In practice, judges appear to apply section 107 in the form of a cognitively more familiar two-sided balancing test in which they weigh the strength of the defendant's justification for its use, as that justification has been developed in the first three factors, against the impact of that use on the incentives of the plaintiff.
144. Harper & Row, 471 US at 566.
145. Campbell, 510 US at 577-78. This tension between Harper and Campbell suggests that even the Court is confused about fair use.
146. See Arica Institute, Inc v Palmer, 970 F2d 1067, 1079 (2d Cir 1992).
147. See Peter Letterese & Associates, Inc v World Institute of Scientology Enterprises, 533 F3d 1287, 1308 n 22 (11th Cir 2008) (noting "the possibility that specific factual circumstances may compel a conclusion that cuts against the grain of all four factors");
148. Ty, Inc v Publications International Ltd, 292 F3d 512, 522 (7th Cir 2002) (Posner).
149. See Marcus, 695 F2d at 1175-76 (attribution);
150. Time Incorporated v Bernard Geis Associates, 293 F Supp 130, 146 (SDNY 1968) ("Fair use presupposes 'good faith and fair dealing.'").
151. See also Greg Lastowka, Digital Attribution: Copyright and the Right to Credit, 87 BU L Rev 41, 84 (2007) (attribution);
152. Lloyd L. Weinreb, Fair's Fair: A Comment on the Fair Use Doctrine, 103 Harv L Rev 1137, 1138 (1990) (fairness).
153. Beebe, 156 U Pa L Rev at 607-08 (cited in note 77).
154. Laches has been endorsed in some circuits but not others. Compare Lyons Partnership, LP v Morris Costumes, Inc, 243 F3d 789, 798 (4th Cir 2001) (rejecting the defense)
155. with Danjaq LLC v Sony Corp, 263 F3d 942, 955-56, 963 (9th Cir 2001) (endorsing it).
156. See, for example, Lasercomb America, Inc v Reynolds, 911 F2d 970, 976-77 (4th Cir 1990).
157. See Melville B. Nimmer and David Nimmer, 4 Nimmer on Copyright § 14.04 [E][1][a] at 14-95 to 14-96.8 (Matthew Bender 2011).
158. 17 USC § 504 (b).
159. See also McRoberts Software, Inc v Media 100, Inc, 329 F3d 557, 573 (7th Cir 2003) (awarding actual damages and lost profits).
160. 17 USC § 504 (c).
161. See Feltner v Columbia Pictures Television, Inc, 523 US 340, 353 (1998) ("The [Seventh Amendment] right to a jury trial includes the right to have a jury determine the amount of statutory damages, if any, awarded to the copyright owner.") (emphasis omitted).
162. 17 USC § 504 (c) (1) (permitting the award of damages within the statutory range "as the court considers just"). The plaintiff can also defer his election between actual and statutory damages to any time before judgment, id, and so may ask the finder of fact to calculate both figures and choose the bigger one.
163. See, for example, Branch v Ogilvy & Mather, Inc, 772 F Supp 1359, 1364 (SDNY 1991).
164. See Pamela Samuelson and Ben Sheffner, Debate, Unconstitutionally Excessive Statutory Damage Awards in Copyright Cases, 158 U Pa L Rev PENNumbra 53, 54(2009), online at http://www.pennumbra.com/debates/pdfs/CopyrightDamages. pdf (visited Nov. 7, 2011).
165. See Electronic Frontier Foundation, RIAA v. The People: Five Years Later 1 (Sept 2008), online at https://www.eff.org/files/eff-riaa-whitepaper.pdf (visited Oct. 27, 2011) (reporting that "the recording industry has filed, settled, or threatened legal actions against at least 30, 000 individuals");
166. Recording Industry Association of America, Press Release, Recording Industry Begins Suing P2P File Sharers Who Illegally Offer Copyrighted Music Online (Sept 8, 2003), online at http://www.riaa.org/newsitem.php?id=85183A9C- 28F4-19CE-BDE6-F48E206CE8A1 (visited Nov. 7, 2011).
167. See id at 56. This was the third jury award. The first award of $222, 000 was thrown out because of bad jury instructions. See Capitol Records Inc v Thomas, 579 F Supp 2d 1210, 1226-27 (D Minn 2008).
168. The district judge remitted the second, $1.9 million award to $54, 000 because the jury's award was "simply shocking." Capitol Records Inc v Thomas-Rasset, 680 F Supp 2d 1045, 1054 (D Minn 2010). But the defendant refused to accept the remittitur, leading to a third trial and the $1.5 million award, which the district court recently reduced as inconsistent with due process.
169. *34 (D Minn 2011).
170. The tactics included blogging about the (negative) opinions he had received from experts regarding the trial, recording phone conferences with the judge, and playing with a pile of tiny pieces of foam in front of the jury in his opening statements to demonstrate the shift from a world of concrete intellectual products (compact discs, for example) to a world of bits. See John Schwartz, Tilting at Internet Barriers, A Stalwart Is Upended, NY Times A11 (Aug. 11, 2009). I was in the courtroom to see the opening statement, and it was surreal.
171. See Samuelson and Sheffner, 158 U Pa L Rev PENNumbra at 53 (cited in note 103);
172. Joseph P. Khan, Why Last Month's $675, 000 Judgment against a BU Student Won't Stop People from Downloading Songs Illegally, Boston Globe G10 (Aug. 25, 2009). The damages award in Tenenbaum's case, too, was reduced by the district court.
173. See Sony BMG Music Entertainment v Tenenbaum, 721 F Supp 2d 85, 121 (D Mass 2010). But the district court's order was reduced by the First Circuit on the ground that the district court improperly addressed the constitutionality of the award before considering common law remittitur.
174. See Sony BMG Music Entertainment v Tenenbaum, 660 F3d 487, 507-08 (1st Cir 2011).
175. Litigants and scholars have argued that massive statutory damages awards violate due process. See, for example, Samuelson and Wheatland, 51 Wm & Mary L Rev at 480-91 (cited in note 4).
176. But see Colin Morrissey, Note, Behind the Music: Determining the Relevant Constitutional Standard for Statutory Damages in Copyright Infringement Lawsuits, 78 Fordham L Rev 3059, 3094-99 (2010). When first introduced, these arguments did not gain much traction in the courts.
177. See, for example, Zomba Enterprises, Inc v Panorama Records, Inc, 491 F3d 574, 586-87 (6th Cir 2007). But they have seen some recent successes, including in Thomas-Rasset's own case.
178. *2- 3;
179. Sony BMG Music Entertainment, 721 F Supp 2d at 121
180. revd Sony BMG Music Entertainment, 660 F3d at 508.
181. 523 US 340 (1998).
182. See Columbia Pictures Television v Krypton Broadcasting of Birmingham, Inc, 259 F3d 1186, 1190 (9th Cir 2001).
183. Nimmer and Nimmer, 4 Nimmer on Copyright § 14.04 [E][1][a] at 14-95 to 14-96 (cited in note 98).
184. "Leading account" is probably controversial, but Daniel Kahneman and Amos Tversky, on whose pathbreaking "prospect theory" I principally rely, wrote the book on judgment under uncertainty. See generally Daniel Kahneman, Paul Slovic, and Amos Tversky, eds, Judgment under Uncertainty: Heuristics and Biases (Cambridge 1982);
185. Daniel Kahneman and Amos Tversky, Prospect Theory: An Analysis of Decision under Risk, 47 Econometrica 263, 263 (1979).
186. For accounts of the value of prospect theory for legal analysis, see, for example, Christine Jolls, Cass R. Sunstein, and Richard Thaler, A Behavioral Approach to Law and Economics, 50 Stan L Rev 1471, 1535-36 (1998); (Pubitemid 128421723)
187. Chris Guthrie, Prospect Theory, Risk Preference, and the Law, 97 Nw U L Rev 1115, 1120-55 (2003).
188. Thomas Jefferson's account here is a classic one. See Letter from Thomas Jefferson to Isaac McPherson (Aug. 13, 1813), in Andrew A. Lipscomb, ed, 13 The Writings of Thomas Jefferson 326, 334 (Jefferson Memorial Association 1903) ("Society may give an exclusive right to the profits arising from [inventions], as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society.").
189. See Note, Designing the Public Domain, 122 Harv L Rev 1489, 1492-93 (2009);
190. Benkler, The Wealth of Networks at 35-37 (cited in note 10).
191. See Landes and Posner, Economic Structure of Intellectual Property Law at 22-24 (cited in note 10);
192. Shyamkrishna Balganesh, Foreseeability and Copyright Incentives, 122 Harv L Rev 1569, 1578 (2009).
193. But see Christopher A. Cotropia and James Gibson, The Upside of Intellectual Property's Downside, 57 UCLA L Rev 921, 925-38 (2010);
194. Glynn S. Lunney Jr, Reexamining Copyright's Incentives-Access Paradigm, 49 Vand L Rev 483, 554-71 (1996) (arguing against the access/incentives paradigm).
195. See Balganesh, 122 Harv L Rev at 1572-74 (cited in note 119).
196. Lessig, Remix at 266-68 (cited in note 43).
197. Eldred v Ashcroft, 537 US 186, 193 (2003).
198. Expected value is the probability-weighted average of possible values for some variable. See Russell B. Korobkin and Thomas S. Ulen, Law and Behavioral Science: Removing the Rationality Assumption from Law and Economics, 88 Cal L Rev 1051, 1062-64 (2000).
199. See James Gibson, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale L J 882, 887 (2007);
200. Wagner, 74 Fordham L Rev at 429-31 (cited in note 78).
201. Not all the proposals focus on the content of copyright law. See, for example, Carroll, 85 NC L Rev at 1123-28 (cited in note 5) (proposing that the Copyright Office issue advisory opinions on fair use).
202. See Parchomovsky and Goldman, 93 Va L Rev at 1510-18 (cited in note 5).
203. See also Fagundes, 50 BC L Rev at 176-77 (cited in note 1) (endorsing fair use harbors).
204. See Parchomovsky and Goldman, 93 Va L Rev at 1511 (cited in note 5).
205. See Carroll, 85 NC L Rev at 1147 (cited in note 5);
206. David Nimmer, A Modest Proposal to Streamline Fair Use Determinations, 24 Cardozo Arts & Enter L J 11, 12-15 (2006).
207. See Joseph P. Liu, Two-Factor Fair Use?, 31 Colum J L & Arts 571, 572, 578-80 (2008);
208. Wagner, 74 Fordham L Rev at 434 (cited in note 78).
209. See Parchomovsky and Goldman, 93 Va L Rev at 1498 (cited in note 5).
210. See Gibson, 116 Yale L J at 898-900 (cited in note 125).
211. See Note, 122 Harv L Rev at 1496 (cited in note 118).
212. See generally Kahneman and Tversky, 47 Econometrica 263 (cited in note 115).
213. See also generally Daniel Kahneman and Amos Tversky, Choices, Values and Frames, in Daniel Kahneman and Amos Tversky, eds, Choices, Values, and Frames 1 (Cambridge 2000);
214. Amos Tversky and Daniel Kahneman, Advances in Prospect Theory: Cumulative Representation of Uncertainty, 5 J Risk & Uncertainty 297 (1992);
215. George Wu, Jiao Zhang, and Richard Gonzales, Decision under Risk, in Derek J. Koehler and Nigel Harvey, eds, Blackwell Handbook of Judgment and Decision Making 399 (Blackwell 2004).
216. Kahneman won the 2002 Nobel Prize in Economics for his work. See Daniel Kahneman, Autobiography (The Nobel Foundation 2002), online at http://nobelprize.org/nobel-prizes/economics/laureates/2002/kahneman. html (visited Nov. 7, 2011).
217. See Kahneman and Tversky, 47 Econometrica at 277 (cited in note 115).
218. See id at 279 ("[T]he value function for losses is steeper than the value function for gains."). The phenomenon is called "loss aversion. " See Daniel Kahneman, Jack L. Knetsch, and Richard H. Thaler, Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias, 5 J Econ Persp 193, 199-203 (1991).
219. See Kahneman and Tversky, 47 Econometrica at 269 (cited in note 115).
220. In their initial work, Kahneman and Tversky identified a gain-loss dichotomy for risk attitudes. See id. Later work culminating in "cumulative prospect theory" revealed a fourfold pattern of risk attitudes, however. People are risk averse for moderate or large gains, and risk seeking for moderate or large losses. But when the stakes are low, attitudes reverse: people become risk seeking for small gains and risk averse for small losses. See Tversky and Kahneman, 5 J Risk & Uncertainty at 306 (cited in note 134).
221. See also Amos Tversky and Peter Wakker, Risk Attitudes and Decision Weights, 63 Econometrica 1255, 1256-57 (1995) (describing the fourfold pattern and collecting empirical sources);
222. George Wu and Richard Gonzalez, Curvature of the Probability Weighting Function, 42 Mgmt Sci 1676, 1676-77 (1996) (noting the fourfold pattern);
223. Antoni Bosch-Domènech and Joaquim Silvestre, Reflections on Gains and Losses: A 2 x 2 x 7 Experiment, 33 J Risk & Uncertainty 217, 225-27 (2006) (confirming the basic risk attitudes described by prospect theory but suggesting that attitudes may be shaped more by the amount of money in play than whether one faces a gain or a loss). Because the financial stakes in copyright suits are probably at least moderate and often high, I rely on the simple gain-loss dichotomy that applies to such situations. For other legal applications of prospect theory
224. see Chris Guthrie, Framing Frivolous Litigation: A Psychological Theory, 67 U Chi L Rev 163, 167-70 (2000);
225. Jeffrey J. Rachlinski, Gains, Losses, and the Psychology of Litigation, 70 S Cal L Rev 113, 128-30 (1996). (Pubitemid 126406364)
226. See also generally Guthrie, 97 Nw U L Rev 1115 (cited in note 115) (reviewing applications).
227. I am eliding somewhat the distinction between risk and uncertainty, where risk represents a known probability of an event's occurrence and uncertainty an ambiguous probability. See, for example, Frank H. Knight, Risk, Uncertainty and Profit 19-20, 197-232 (Cambridge 1921). In any event, choice under uncertainty follows many of the same patterns as choice under risk.
228. See Tversky and Kahneman, 5 J Risk & Uncertainty at 316 (cited in note 134).
229. See also Marco Lauriola and Irwin P. Levin, Relating Individual Differences in Attitude toward Ambiguity to Risky Choices, 14 J Behav Dec. Making 107, 120-21 (2001).
230. Again, recall that not all information producers rely on an exclusion strategy. See Benkler, The Wealth of Networks at 41-48 (cited in note 10).
231. See 17 USC § 103.
232. See also 17 USC § 101.
233. There is cash to be had. See, for example, Bridgeport Music, Inc v Dimension Films, 410 F3d 792, 796, 809-10 (6th Cir 2005) (upholding the district court's judgment granting an award of $41, 813.30 against the defendant, who used seven seconds of plaintiff's song without his permission).
234. 537 US 186 (2003).
235. Christopher Buccafusco and Christopher Sprigman, Valuing Intellectual Property: An Experiment, 96 Cornell L Rev 1, 17-18 (2010).
236. See Michael W. Carroll, One for All: The Problem of Uniformity Cost in Intellectual Property Law, 55 Am U L Rev 845, 855 (2006) ("The distribution of rewards from both cultural and technological innovation is highly skew.").
237. See Michal Shur-Ofry, Popularity as a Factor in Copyright Law, 59 U Toronto L J 525, 533 (2009).
238. See David A. Armor and Shelley E. Taylor, When Predictions Fail: The Dilemma of Unrealistic Optimism, in Thomas Gilovich, Dale Griffin, and Daniel Kahneman, eds, Heuristics and Biases: The Psychology of Intuitive Judgment 334, 334 (Cambridge 2002) ("By a number of metrics and across a variety of domains, people have been found to assign higher probabilities to their attainment of desirable outcomes than either objective criteria or logical
239. Jolls, Sunstein, and Thaler, 50 Stan L Rev at 1524-25 (cited in note 115) (discussing the relationship between this phenomenon and hindsight bias).
240. See also Buccafusco and Sprigman, 96 Cornell L Rev at 27 (cited in note 152).
241. The phenomenon of overestimating the probability of salient events is referred to as the availability heuristic. See Amos Tversky and Daniel Kahneman, Judgment and Uncertainty, in Kahneman, Slovic, and Tversky, Judgment under Uncertainty 1, 11 (cited in note 115).
242. I do not intend to make a normative judgment that the copyright holder's discount is irrational. Some argue that heuristics and biases are adaptive. See generally Gerd Gigerenzer, Adaptive Thinking: Rationality in the Real World (Oxford 2000);
243. Gerd Gigerenzer, Peter M. Todd, and the ABC Research Group, Simple Heuristics That Make Us Smart (Oxford 1999).
244. See 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, 1614-15 (1982).
245. See Kelo v City of New London, 545 US 469, 489-90 (2005) (allowing the City of New London to use the power of eminent domain to acquire property in order to further the city's goal of revitalizing the city).
246. This is a familiar story, in which private ordering of property through contract becomes too expensive, justifying a liability rule. See Guido Calabresi and A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv L Rev 1089, 1106-10 (1972). The "liability rule" for fair uses is a bargain, providing access for $0.
247. See Stephen Breyer, Regulation and Its Reform 7 (Harvard 1982).
248. On "muddy" entitlements, see Carol M. Rose, Crystals and Mud in Property Law, 40 Stan L Rev 577, 580-90 (1988).
249. For their connection to hard bargains, see Dan L. Burk, Muddy Rules for Cyberspace, 21 Cardozo L Rev 121, 138 (1999).
250. Consider also Ian Ayres and Eric Talley, Solomonic Bargaining: Dividing a Legal Entitlement to Facilitate Coasean Trade, 104 Yale L J 1027, 1072 (1995).
251. But see Fagundes, 50 BC L Rev at 162-70 (cited in note 1).
252. Lessig, Remix at 266-68 (cited in note 43).
253. See Parchomovsky and Goldman, 93 Va L Rev at 1510 (cited in note 5).
254. See Lessig, Free Culture at 185-87 (cited in note 1).
255. They are not. See, for example, Dun & Bradstreet Software Services, Inc v Grace Consulting, Inc, 307 F3d 197, 208 (3d Cir 2002) (copying 27 of 525, 000 lines of code was not de minimis).
256. See Kahneman and Tversky, 47 Econometrica at 278-79 (cited in note 115).
257. See Parchomovsky and Goldman, 93 Va L Rev at 1526 (cited in note 5).
258. See Amos Tversky and Daniel Kahneman, Judgment under Uncertainty: Heuristics and Biases, 185 Sci 1124, 1128-30 (1974) (giving examples of studies that show how often people under-or overestimate things such as "the probabilities of failure in complex systems" and "the probability of conjunctive events"). A recent study explores the heuristic in tipping practices.
259. See John S. Seiter, Garett M. Brownlee, and Matthew Sanders, Persuasion by Way of Example: Does Including Gratuity Guidelines on Customers' Checks Affect Restaurant Tipping Behavior?, 41 J Applied Soc Psych 150, 154-55 (2011) (finding that "customers left significantly larger tips... when their server included gratuity guidelines for them than when their server did not"). The argument here about anchoring is similar to Gibson's.
260. See Gibson, 116 Yale L J at 887-903 (cited in note 125) (describing the self-reinforcing feedback loops created by the fair use doctrine).
261. See Tversky and Kahneman, 185 Sci at 1128 (cited in note 172).
262. The temperature on Mars is closer to thirty below. See Nadine G. Barlow, Mars: An Introduction to Its Interior, Surface and Atmosphere 163 (Cambridge 2008).
263. This is the European approach. See, for example, Urheberrechtsgesetz (Copyright Act) § 7, arts 45-60 (1965) (Ger), translation online at http://www.iuscomp.org/gla/statutes/UrhG.htm#45 (visited Nov. 8, 2011) (enumerating in exhaustive detail the types of materials that may be reproduced, the people authorized to make and receive the reproductions, and the purposes for which such reproductions may be distributed).
264. Regarding prediction and postdiction, see generally Ehud Guttel and Alon Harel, Uncertainty Revisited: Legal Prediction and Legal Postdiction, 107 Mich L Rev 467 (2008).
265. See Myron Rothbart and Mark Snyder, Confidence in the Prediction and Postdiction of an Uncertain Outcome, 2 Can J Behav Sci 38, 42-43 (1970).
266. See Chip Heath and Amos Tversky, Preference and Belief: Ambiguity and Competence in Choice under Uncertainty, 4 J Risk & Uncertainty 5, 8-9 (1991).
267. See Guttel and Harel, 107 Mich L Rev at 482 (cited in note 177) ("The experimental findings... imply that individuals will be less inclined to engage in uncertain rule-governed activities than in uncertain standards-governed activities.").
268. There may be other economic benefits of uncertainty. See, for example, Fred von Lohmann, Fair Use as Innovation Policy, 23 Berkeley Tech L J 829, 840-43 (2008).
269. Richard Fallon Jr helpfully develops a set of four ideal-typical accounts of the Rule of Law in "The Rule of Law" as a Concept in Constitutional Discourse, 97 Colum L Rev 1, 5 (1997) (identifying the four ideal-typical accounts of the Rule of Law as " (i) historicist, (ii) formalist, (iii) Legal Process, and (iv) substantive"). (Pubitemid 127430163)
270. See Friedrich A. Hayek, The Road to Serfdom 72 (Chicago 1944);
271. Joseph Raz, The Authority of Law: Essays on Law and Morality 213 (Oxford 1979);
272. Kim Forde-Mazrui, Ruling Out the Rule of Law, 60 Vand L Rev 1497, 1507 (2007).
273. See Fallon, 97 Colum L Rev at 6 (cited in note 184) ("[M]ost judgments of consistency and inconsistency with the Rule of Law should be regarded as relatively ad hoc and conclusory."); George P. Fletcher, Basic Concepts of Legal Thought 11 (Oxford 1996) ("[L]egality and the 'rule of law' are ideals that present themselves as opaque even to legal philosophers.");
274. Judith N. Shklar, Political Theory and the Rule of Law, in Allan C. Hutchinson and Patrick Monahan, eds, The Rule of Law: Ideal or Ideology 1, 1 (Carswell 1987) ("[T]he phrase 'the Rule of Law' has become meaningless thanks to ideological abuse and general over-use.").
275. Raz, The Authority of Law at 212 (cited in note 185).
276. See, for example, Margaret Jane Radin, Reconsidering the Rule of Law, 69 BU L Rev 781, 791-92 (1989). See also Fallon, 97 Colum L Rev at 1-2 (cited in note 184).
277. John Rawls, for example, begins "with the precept that ought implies can"-that is, that "the actions which the rules of law require and forbid should be of a kind which men can reasonably be expected to do and to avoid." John Rawls, A Theory of Justice 236-37 (Belknap 1971).
278. Consider Raz, The Authority of Law at 220-23 (cited in note 185).
279. See Lon L. Fuller, The Morality of Law 34-35 (Yale rev ed 1969).
280. See Rawls, A Theory of Justice at 235-43 (cited in note 189);
281. Hayek, The Road to Serfdom at 72-87 (cited in note 185).
282. See Rawls, A Theory of Justice at 239 (cited in note 189) ("[Where t]he boundaries of our liberty are uncertain... liberty is restricted by a reasonable fear of its exercise.").
283. See also Jeremy Waldron, The Rule of Law in Contemporary Liberal Theory, 2 Ratio Juris 79, 84-85 (1989) (arguing that the main ideal of the ideal of rule of law lies in the notion of predictability).
284. Hayek, The Road to Serfdom at 72 (cited in note 185).
285. See also Radin, 69 BU L Rev at 785 (cited in note 188) (emphasizing two principles: "first, there must be rules; second, those rules must be capable of being followed");
286. Raz, The Authority of Law at 218 (cited in note 185) ("[I]n the final analysis the doctrine rests on its basic idea that the law should be capable of providing effective guidance.").
287. See Jeremy Waldron, The Concept and the Rule of Law, 43 Ga L Rev 1, 6-9 (2008) (deemphasizing predictability).
288. Fallon identifies the lack of an "integrated theory." Fallon, 97 Colum L Rev at 54-55 (cited in note 184).
289. The Rule of Law is not identical to a good or just legal system. See Raz, The Authority of Law at 211 (cited in note 185).
290. See also id at 223-24. But consider Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv L Rev 1685, 1685 (1976) (connecting rules to individualism, standards to altruism).
291. Parchomovsky and Goldman, 93 Va L Rev at 1502 (cited in note 5).
292. See generally Antonin Scalia, The Rule of Law as a Law of Rules, 56 U Chi L Rev 1175 (1989).
293. See Fisher, 101 Harv L Rev at 1669-92 (cited in note 80).
294. See, for example, Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U Chi L Rev 711, 752 (1986) (describing norms for private toll roads).
295. See Ronald M. Dworkin, The Model of Rules, 35 U Chi L Rev 14, 25 (1967).
296. See, for example, Dworkin, 88 Harv L Rev at 1082-83 (cited in note 70);
297. Fuller, 71 Harv L Rev at 663 (cited in note 68): Surely a paragraph does not have a "standard instance" that remains constant whatever the context in which it appears. If a statute seems to have a kind of "core meaning" that we can apply without a too precise inquiry into its exact purpose, this is because we can see that, however one might formulate the precise objective of the statute, this case would still come within it.
298. See also Daniel A. Farber, The Inevitability of Practical Reason: Statutes, Formalism, and the Rule of Law, 45 Vand L Rev 533, 548-49 (1992).
299. The basic point comes from Ludwig Wittgenstein via Margaret Jane Radin. See Radin, 69 BU L Rev at 799-800 (cited in note 188) ("Only the fact of our seemingly 'natural' agreement on what are instances of obeying rules permits us to say there are rules. The rules do not cause the agreement; rather, the agreement causes us to say there are rules.").
300. See also Cass R. Sunstein, Problems with Rules, 83 Cal L Rev 953, 957 (1995) (criticizing the unreflective retreat to rules).
301. See Hart, 71 Harv L Rev at 607 (cited in note 67).
302. This example is from Walker v Martin, 131 S Ct 1120(2011), in which the Supreme Court considered whether dismissal pursuant to a California rule requiring the "prompt[]" filing of petitions could qualify as an adequate and independent state-law ground, which would bar federal relief. "Indeterminate language is typical of discretionary rules. Application of those rules in particular circumstances, however, can supply the requisite clarity." Id at 1128.
303. See Harper & Row, Publishers, Inc v Nation Enterprises, 471 US 539 (1985). In Harper & Row, a magazine story was based on a copyrighted manuscript of President Gerald Ford's autobiography, and the story included 300 words copied from the manuscript. The dissent argued that the quotation of "300 words from the unpublished 200, 000-word manuscript" was fair use, id at 579 (Brennan dissenting), but the majority emphasized that the portion used was "the heart of the book", id at 565 (majority).
304. Is the 10 percent by mass or by volume? What about color and material? Jeff Koons's Balloon Flower (Magenta) would not have sold for $25 million if it were actually made out of standard balloons. See Jeff Koons (b. 1955), Balloon Flower (Magenta) (Christie's 2011), online at http://www.christies.com/ LotFinder/lot-details.aspx?intObjectID=5101408 (visited Nov. 8, 2011) (reporting the 2008 sale of the work for $25, 752, 059).
305. See Guttel and Harel, 107 Mich L Rev at 484 (cited in note 177) ("[I]t is often (wrongly) believed that only standards produce uncertainty and therefore only standards can have chilling effects.");
306. Fallon, 97 Colum L Rev at 50 (cited in note 184).
307. See Fisher, 101 Harv L Rev at 1669-92 (cited in note 80).
308. US Const Art I, § 8, cl 8.
309. See note 14. There are nonconsequentialist features of copyright law, including VARA, see text accompanying notes 71-72, and the author's right to terminate a transfer or license thirty-five years after its execution. See 17 USC § 203 (a) (3).
310. Sony Corp of America v Universal City Studios, Inc, 464 US 417, 450 (1984).
311. Harper & Row, 471 US at 546.
312. See also Fisher, 101 Harv L Rev at 1691-92 (cited in note 80).
313. See Fallon, 97 Colum L Rev at 50 (cited in note 184) ("[T]he greater the normative consensus, the less the realization of Rule of Law values depends on the law being a law of rules."). People tend to internalize directives more easily when they recognize the underlying value, which is often easier with directives framed as general principles.
314. See generally Edward L. Deci and Richard M. Ryan, The "What" and "Why" of Goal Pursuits: Human Needs and the Self-Determination of Behavior, 11 Psych Inq 227, 235-39 (2000).
315. Consider Note, 122 Harv L Rev at 1504 (cited in note 118).
316. See National Endowment for the Arts v Finley, 524 US 569, 585 (1998) (upholding grant program notwithstanding discretion in the provision of funds, and noting that "[t]he 'very assumption' of the NEA is that grants will be awarded according to the 'artistic worth of competing applicants', and absolute neutrality is simply 'inconceivable'"). The point in Finley is a substantive one-that the First Amendment is not implicated-but the common thread is that the First Amendment, like the Rule of Law, is concerned with securing liberty.
317. City of Chicago v Morales, 527 US 41, 53, 64 (1999) (invalidating an ordinance prohibiting "loitering", that is, "remain[ing] in any one place with no apparent purpose", on vagueness grounds).
318. See also Skilling v United States, 130 S Ct 2896, 2931 (2010) (reading "honest services" mail fraud statute narrowly to proscribe only bribes and kickbacks to avoid vagueness concerns). Three justices in Skilling would have invalidated the statute as unconstitutionally vague. Id at 2935 (Scalia concurring in part and concurring in the judgment). Justice Scalia's commitment to enforcing the void-for-vagueness doctrine resurfaced twice the following term.
319. See Sykes v United States, 131 S Ct 2267, 2284 (2011) (Scalia dissenting);
320. Derby v United States, 131 S Ct 2858, 2860 (2011) (Scalia dissenting from denial of certiorari).
321. See Morales, 527 US at 52 (explaining that a statute "may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests").
322. This argument is more or less Kantian and derives from the second formulation of the categorical imperative. See Immanuel Kant, Groundwork of the Metaphysics of Morals 38 (Cambridge 1997) (Mary Gregor, ed and trans) ("[A]ct [so] that you use humanity... always at the same time as an end, never merely as a means.") (emphasis omitted).
323. The concentration of burdens on a select few is, for some at least, an economic concern as well. See, for example, Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis 46 (Yale 1970) (describing "secondary costs" to be avoided through spreading losses). The principle is more familiar in the nonutilitarian domain.
324. See, for example, Charles Fried, An Anatomy of Values: Problems of Personal and Social Choice 187-200 (Harvard 1971) (explaining the concept of the "risk pool", that we agree to impose "normal" risks upon one another, and that tort liability is appropriate where an individual imposes risk beyond those he would accept from others);
325. George P. Fletcher, Fairness and Utility in Tort Theory, 85 Harv L Rev 537, 542 (1972): The general principle expressed in all of these situations governed by diverse doctrinal standards is that a victim has a right to recover for injuries caused by a risk greater in degree and different in order from those created by the victim and imposed on the defendant-in short, for injuries resulting from nonreciprocal risks.
326. Mark Lemley and Eugene Volokh argue that injunctions are the real problem for liberty. See Mark A. Lemley and Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke L J 147, 211-13 (1998).
327. Consider also eBay Inc v MercExchange, LLC, 547 US 388, 396-97 (2006) (Kennedy concurring) (emphasizing that the vagueness and suspect validity of some patent claims are reasons to refrain from providing injunctive relief in patent cases).
328. See 17 USC § 504 (c) (2).
329. See also Samuelson and Wheatland, 51 Wm & Mary L Rev at 441 (cited in note 4).
330. See 17 USC § 506.
331. Consider Fuller, The Morality of Law at 93 (cited in note 191).
332. See, for example, Oliver Wendell Holmes Jr, The Common Law 97 (Legal Classics 1982): One who diminishes the value of property by intentional damage knows it belongs to somebody. If he thinks it belongs to himself, he expects whatever harm he may do to come out of his own pocket. It would be odd if he were to get rid of the burden by discovering it belonged to his neighbor.
333. This observation is consistent with the terminology, for "punitive damages" is used interchangeably with "exemplary damages." Note, Exemplary Damages in the Law of Torts, 70 Harv L Rev 517, 517 (1957).
334. State Farm Mutual Automobile Insurance Co v Campbell, 538 US 408, 417 (2003).
335. BMW of North America, Inc v Gore, 517 US 559, 587 (1996).
336. See also State Farm, 538 US at 418 ("Indeed, the point of due process-of the law in general-is to allow citizens to order their behavior.")
337. quoting Pacific Mutual Life Insurance Co v Haslip, 499 US 1, 59 (1991) (O'Connor dissenting);
338. Exxon Shipping Co v Baker, 554 US 471, 525 (2008) (Breyer concurring) ("Like the Court, I believe there is a need, grounded in the rule of law itself, to assure that punitive damages are awarded according to meaningful standards that will provide notice of how harshly certain acts will be punished.").
339. "Descriptive" here refers to canons that aim to identify the meaning of the enacted words. Descriptive canons are contrasted with "normative" ones that favor particular substantive policies. See, for example, Caleb Nelson, What Is Textualism?, 91 Va L Rev 347, 393-94 (2005).
340. See Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 S Ct Rev 345, 349-56;
341. John Calvin Jeffries Jr, Legality, Vagueness, and the Construction of Penal Statutes, 71 Va L Rev 189, 198-200 (1985);
342. Note, The New Rule of Lenity, 119 Harv L Rev 2420, 2421 (2006).
343. Canons like lenity have sometimes been called "dice-loading rules." See The Supreme Court 2007 Term: Leading Cases, 122 Harv L Rev 465, 474 n 72 (2008).
344. See, for example, Harper & Row, 471 US at 603 (Brennan dissenting): In any event, because the appropriation of literary form-as opposed to the use of information-was not shown to injure Harper & Row's economic interest, any uncertainty with respect to the propriety of the amount of expression borrowed should be resolved in favor of a finding of fair use.
345. The Rule of Law position would also permit a rule of construction that narrows access to improve clarity, even if doing so were bad policy. An example might be a narrow but welldefined approach to parody. See Campbell v Acuff-Rose Music, Inc, 510 US 569, 599 (1994) (Kennedy concurring) ("More than arguable parodic content should be required to deem a would-be parody a fair use. Fair use is an affirmative defense, so doubts about whether a given use is fair should not be resolved in favor of the self-proclaimed parodist."). But see Louis Kaplow and Steven Shavell, Fairness versus Welfare, 114 Harv L Rev 961, 1381 (2001) (arguing that legal policies should be assessed based only on their effects on welfare, and rejecting notions of fairness).
346. Pub L No 99-660, 100 Stat 3755, codified at 42 USC § 300aa-11 et seq.
347. See generally Mary Beth Neraas, Comment, National Childhood Vaccine Injury Act of 1986: A Solution to the Vaccine Liability Crisis?, 63 Wash L Rev 149 (1988).
348. See Bruesewitz v Wyeth LLC, 131 S Ct 1068, 1073-74, 1082 (2011).
349. See Google Book Settlement (Rust Consulting 2011), online at http://www.googlebooksettlement.com (visited Nov. 8, 2011).
350. See also Picker, 5 J Competition L & Econ at 391-94 (cited in note 47). One difference is that the settlement is private, although its scope and the fact that it adjudicates rights relating to orphan works (whose copyright holders are not involved in negotiation) gives it a public flavor. The better analogy might be Terry Fisher's alternative compensation system for music file sharing.
351. See William W. Fisher III, Promises to Keep: Technology, Law, and the Future of Entertainment 199-258 (Stanford 2004). Fisher proposes legalizing file sharing, taxing relevant devices, and sharing the tax revenues among those whose files are shared in proportion to downloads.
352. To the extent that concentrating attorney's fees on copyright holders is a concern, it can be alleviated by providing fees to successful claimants in the administrative process, as the National Childhood Vaccine Injury Act does. See NCVIA § 2115, 100 Stat at 3768, 42 USC § 300aa-15.
353. Michael Crichton wrote Captain John Connor in his novel Rising Sun with the actor who would later play the role (Sean Connery) in mind. See David Denby, Dim Sun, NY Mag 50, 50 (Aug. 2, 1993).