Fair use, efficiency, and corrective justice

Legal Theory

Volumn 3, Issue 4, 1997, Pages 347-378

  Parchomovsky, Gideon ^a  

^a HEBREW UNIVERSITY OF JERUSALEM   (Israel)

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EID: 85007318995     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325200000847     Document Type: Article

References (132)

1. Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir. 1939). See also Robert C. Ellickson, ORDER WITHOUT LAW, HOW NEIGHBORS SETTLE DISPUTES, 258 (1991) (describing the fair use doctrine as “a murky area of law”); and Lloyd L. Weinreb, Fair's Fair A Comment on tlie Fair Use Doctrine, 103 HARV. L. REV. 1137, 1137-38 (1990) [hereinafter Weinreb].
2. See generally Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105, 1105-6 (1990) [hereinafter: Leval].
3. See generally William F. Patry, THE FAIR USE PRIVILEGE IN COPYRIGHT LAW (2nd ed. 1995) 3-18 [hereinafter. Patry].
4. Id. at 1106.
5. See, e.g., Paul Goldstein, COPYRIGHT: PRINCIPLES, LAW AND PRACTICE, § 10.1 at 10:1-10:2 (2nd ed. 1995) [hereinafter Goldstein, Copyright: Principles].
6. Leval, COPYRIGHT: PRINCIPLES note 2, at 1106 (“Judges do not share a consensus on the meaning of fair use. Earlier decisions provide little basis for predicting later ones”).
7. Six recent prominent cases were reversed at every stage of review. In Rosemont Enterprises, Inc. v. Random House, Inc., 256 F. Supp. 55 (S.D.N.Y), mrV/366 F.2d 303 (2d. Cir. 1966), cert, denied, 385 U.S. 1009 (1967) the Second Circuit reversed an injunction issued by the district court In Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429 (CD. Cal. 1979), rev'd, 659 F.2d 963 (9th Cir. 1981), rev'd 464 U.S. 417 (1984) the Ninth Circuit reversed the district court's finding of fair use and then was reversed by the Supreme Court's holding for the defendant. In Harper & Row Publishers Inc. v. Nation Enterprises, 557 F. Supp. 1067 (S.D.N.Y), modified, 723 F.2d 195 (2d Cir. 1983), rev'd471 U.S. 539 (1985) the decision of the district court to award damages to the plaintiff was reversed by the Second Circuit, which in turn was reversed by the Supreme Court. In Salinger v. Random House, Inc., 650 F. Supp. 413 (S.D.N.Y. 1986), rev'd, 811 F.2d 90 (2d. Cir.). cert, denied ASA U.S. 890 (1987), the Second Circuit reversed the district court's finding of fair use. In New Era Publications International v. Henry Holt & Co., 695 F. Supp. 1493 (S.D.N.Y. 1988), affdon other grounds, 873 F.2d 576 (2d. Cir. 1989) the district court's finding of fair use was reversed on appeal. Finally, in Campbell v. Acuff-Rose Music, Inc., 754 F. Supp. 1150 (M.D. Tenn. 1991), rev'd972 F.2d 1429 (6th Cir. 1992), rev'd 510 U.S. 569 1164 (1994), the district court's finding of fair use was reversed by the Sixth Circuit and then reversed again by the Supreme Court.
8. In the first two cases that reached the Supreme Court it split 4-4 and thus in both cases no opinion was issued. See Williams & Wilkins Co. v. United States, 420 U.S. 376 (1975); Columbia Broadcasting Sys. v. Lowe's, Inc., 356 U.S. 43 (1958). The Sony case was decided by a 5-4 majority; see Sony, 464 U.S. 417; the Harper & Rmo case was decided by a 6-3 majority, see Harper & ROTH, 471 U.S. 539.
9. Weinreb, 5M/ra note 1, at 1138.
10. See, e.g., Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Jletamax Case and Its fredecessor, 82 COLUM. L. REV. 1600 (1982) [hereinafter Gordon, Fair Use] and William F. Fisher, Reconstructing the Fair Use Doctrine, 101 HARV. L. REV. 1659 (1988) [hereinafter Fisher].
11. See, e.g., Linda J. Lacey, Of Bread and Roses and Copyrights, 1989 DUKE L.J. 1532,1584-93 (1989).
12. See George F. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537 (1972) [hereinafter: Fletcher].
13. Id. at 548.
14. See Patry, Fairness and Utility in Tort Theory note 3, at 3.
15. See, e.g., Tonsow v. Walker 3 Swans. (App.) 672, 680 (1752); also Mawan v. Tegg 2 Russ. (Ch.) 385, 390-91 (1826).
16. Wilkinsv.Aikin 17Ves. (Ch.) 422 (1810);dtedmBramwellv.Holcomb3My.&Cr. (Ch.) 737,738(1836).
17. See, e.g., Cary v. Kearsley 4 Esp. 168,170-71 (1803).
18. See, e.g., Roworth v. Wilkes 1 Camp. 94 (K.B. 1807); also Patry, Cary v. Kearsley 4 Esp. note 3, at 11 n. 22 and the sources cited therein. As Patry points out, the absence of aminus furandi did not operate as a legal defense, but its presence operated “to deprive the appropriator of the privilege of fair use.” Id.
19. Dodsley v. KinnersleyAmb. 403,405 (1761) (No. 212). (The court must take notice of the springs flowing from trade; and though they cannot regard customs of trade as binding, yet will consider the consequences of them”).
20. Tonson v. Walker 3 Swans. (App.) 672, 680 (1752). (“Arguments from public utility maybe urged on both sides; but if this were more doubtful still it is clear that injunction ought to be granted, because the notes were colourably abridged or taken… and only twenty-eight were added.…”)
21. F. Cas. 342 (C.C.D. Mass. 1841) (No. 4,091).
22. Id. at 344-45.
23. Id.
24. See Patry, Id. note 3, at 23 (The error in modem fair use litigation-avoided in Folsom u Marsh-is to start with precisely the “public interest” inquiry, which may be expressed in the question, “Does the public interest favor enforcing plaintiffs copyright?” Justice Story did not make the error of balancing the interests of the author and the public, but instead examined whether “defendant's use qualified as fair use with the full burden of making out an affirmative defense properly resting on the defendant'” [emphasis in the original]).
25. More specifically, the defendants copied 319 letters of President Washington that were included in the original work. They did not copy any of the narrative parts. The defendant's book contained 866 pages and was written in the form of an autobiography. The original work consisted of twelve volumes.
26. F.2d 303 (2d Cir. 1966) quoting Berlin v. E. C. Publications Inc., 329 F.2d 541, 544 (2nd Cir. 1964).
27. Id. at 307. It is important to note that the court neglected to mention that the Constitution intended to “Promote the Progress of Science and Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const. Art. I sec. 8, cl. 8 (emphasis added).
28. See generally Robert A-Gorman &Jane C. Ginsburg, COPYRIGHT FOR THE NINETIES. CASES AND MATERIALS, 551-54 (4th ed. 1993).
29. Weinreb, COPYRIGHT FOR THE NINETIES. note 1, at 1139 (footnotes omitted).
30. See, e.g., Fisher, COPYRIGHT FOR THE NINETIES. note 1 note 10; Jay Dratler Jr., Distilling the Witches’ Brew of Fair Use in Copyright'IMW, 45 U. MIAMI L. REV. 233 (1988) [hereinafter. Dratler]; also Weinreb, COPYRIGHT FOR THE NINETIES. note 1 note 1.
31. In Sony, Justice Stevens writing for the majority stated that ever)’ commercial use is to he presumed unfair. 464 U.S. at 451. A year later in Harper & /towjustice O'Connor writing for the majority branded the fourth factor-the effect of the second use on the potential market for the original work-as “the single most important element of fair use.” 471 U.S. at 556.
32. Campbell, 510 U.S. at 579.
33. Harper & Row, 471 U.S. at 562-63. See also Fisher, Campbell note 10, at 1679-82.
34. See Wendy J. Gordon, An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory, 41 STAN. L. REV. 1343, 1372 (1989) [hereinafter: Gordon, An Inquiry].
35. Richard A. Posner, THE PROMXMS OF JURISPRUDENCE 3fi2 (1990). The term “wealth” in “wealth maximization” is defined as “the sum of all tangible and intangible goods and services weighted by prices of two sorts: offer prices (what people are willing to pay for goods they do not already own); and asking prices (what people demand to sell what they own).* Id. at 356.
36. See Immanuel Kant, FUNDAMENTAL PRINCIPLES OFTHE METAPH\SIC OF MORALS 46 (Thomas K. Abott trans., 1919). For a discussion of this principle, see generally Jettric G. Murphy & Jules L.Coleman,PlHLOSOPHVOF LAW 77-81 (revised ed. 1990) [hereinafter Murphy and Coleman].
37. See generally, Paul Goldstein, COPYRIGHTS HIGHWAY 165-196 (1994) [hereinafter: Goldstein, Copyright's Highway].
38. See, e.g., Leval, COPYRIGHTS HIGHWAY 165-196 note 2; Fisher, COPYRIGHTS HIGHWAY 165-196 note 10; and Gordon, Fair Use, COPYRIGHTS HIGHWAY 165-196 note 10. However, Jeremy Waldron observes that it seems psychologically unavoidable that rights grounded in utility will be taken as ends in themselves: too much emphasis on the utilitarian character of the premises can undermine people's sense that it is a right (as opposed, say, to some defeasible presumption or rule of thumb) that is grounded in this way. “Jeremy Waldron, From Authors to Copiers: Individual Rights and Social Values in Intellectual Ihoperty, 68 Cm.-KENT L. REV. 842,851 (1993).
39. Weinrcb, Leval nolc 1, at 1141.
40. Leval, Leval nolc 1 note 2, at 1111.
41. See, e.g. Time Inc. v. Bernard Geis Associates, 293 F. Supp. 130 (S.D.N.Y. 1968), where the public interest in having as much information as possible on the assassination of President Kennedy weighed heavily in favor of allowing the incorporation of unique pictures of the murder in a book on that subject; also Wcinreb, Leval note 1, at 1143.
42. Gordon, Fair Use, Time Inc. v. Bernard Geis Associates note 10, at 1601.
43. Id. at 1605-6.
44. Id at 1607,1616.
45. Id. at 1613.
46. Id. at 1614.
47. This applies with equal vigor to Fisher's account that will be discussed below; see text accompanying notes 75-82.
48. Gordon, Fair Use, This applies with equal vigor to Fisher's account that will be discussed below; note 10, at 1627-35.
49. Id. at 1632-33.
50. Externalities arc the effects of one's activities on others’ activities and entitlements. For a more elaborate discussion of the problem of externalities see Richard Corncs & Todd Sandier, THE THEORY OF EXTERNALITIES, PUBLIC Goons AND CLUB Goons 29-66 (1986) [hereinafter: Comes and Sandier].
51. To determine whether copyright protection generates external costs and external benefits, we first have to clearly define the terms “cost” and “benefit.” For an illuminating discussion of the subject see Jules Coleman & Arthur Ripstein, Mischief and Misfortune (Annual McGilt Lecture in furispniaVnce and Public Policy), 41 McGlLL L. J. 91 (1995) [hereinafter Coleman and Ripstein].
52. See, e.g., Steven N. S. Cheung, The Structure of a Contract and the Theory of a Non-Exclusive Resource, 13 J. L. & ECON. 49,70 (1970) (concluding that “[t]he concept of “externality” is vague because classification and theories [thereof] are varied, arbitrary and ad hoc. For these reasons, theories generated by the concept of “externality” are not liable to be helpful”); also, James M. Buchanan & Wm. Craig Stubblebine, teternality, 29 ECONOMICS 371 (1962).
53. See, e.g., Carl J. Dahlman, Thelroblem of Externality, 22 J. L. & ECON. 141,143 (1979) (“It cannot be shown with purely conceptual analysis that markets do not handle externalities: any such assertion necessitates an assumption that the government can do better”).
54. Paul A. Samuelson & William Nordhaus, ECONOMICS 314 (14th cd. 1992).
55. Id. at 310-15.
56. Ronald 11. Coase, The Problem of Social Cost, 3J. L. & ECON. 1 (1960).
57. See Sony, 464 U.S. at 479 (Blackmun, J. dissenting).
58. Goldstein, Copyright's Highway, Ronald 11. Coase note 39, at 223-24; see also Paul Goldstein, Copy-I right in the New Information Age, 40 CATH. U. L. R. 829, 829 (1991) [hereinafter: Goldstein, ’ Copyright in the New Information Age].
59. ASCAP, the American Society of Composers Authors and Publishers, is a copyright collective that licenses rights for public performance of musical works. CCC, the Copyright Clearinghouse Center, licenses the right to reproduce literary works. For a comprehensive review see David Sinacore-Guinn, COLLECTIVE ADMINISTRATION OF COPYRIGHT AND NEIGHBORING ! Ricirrs (1993).
60. I 63. To become members in such institutions, creators ought to assign the rights to their works to the institution and authorize it to license the works as it sees fit.
61. See generally Robert P. Merges, Contracting into Liability Rules: Institutions Supporting Trans-action in Intellectual Property Rights, 84 CAL. L. REV. 1293 (1996).
62. This is because the existence of the fair use doctrine threatens to thwart the effective operation of copyright collectives like ASCAP and CCC. Indeed, if fair use is to be awarded too generously, copyright collectives will be unable to collect any revenues as users will always resort to fair use arguments to avoid paying.
63. See, e.g., Goldstein, Copyright's Highway, This is because the existence of the fair use doctrine threatens to thwart the effective operation of copyright collectives like ASCAP and CCC. note 39, at 223-24; Dratler, This is because the existence of the fair use doctrine threatens to thwart the effective operation of copyright collectives like ASCAP and CCC. note 32, at 294 (“It makes no sense to provide a fair use subsidy to a user when a license could be efficiently negotiated”); also American Geophysical Union v. Texaco Inc., 802 F. Supp. 1 (S.D.N.Y. 1992), ajfd, 37 F.3d 881 (2d Cir. 1994).
64. George Priest, What Economists Can Tell Lawyers about Intellectual I*roperty, in 8 RESEARCH IN LAW AND ECONOMICS.-THE ECONOMICSOF PATENTS AND COPYRIGHTS 21 (J. Palmer& R. Zerbe eds., 1986). Likewise, Timothy Brennan appears to be right to conclude that “[a] full economic evaluation of copyright policy is impossible because the complexity of competitive interaction and demand substitutions among cop>Tighted works is beyond the capability of economic theory or data to generate cost-benefit analyses.” TimothyJ. Brennan, Copyright, Property and tlie Right to Deny, 68 CHI.-KENT. L. REV. 675, 704 n.101 (1993).
65. William M. Landes & Richard A. Posner, An Economic Analysis of Copyright IMW, 18 J. LEGAL. STUD. 325,341 (1989).
66. For a normative discussion of the institutional aspects of law and economics, wrjules L, Coleman, Efficiency, Utility and Wealth Maximization, 8 HOFSTRA L. REV. 509,549 (1980) (arguing that even if economic efficiency should he maximized it docs not follow that courts and agents should act to this effect without “a further theory of institutional competence”).
67. Gordon, Fair Use, For a normative discussion of the institutional aspects of law and economics note 10, at 1619 (footnotes omitted).
68. Harper & Row, 471 U.S. at 564: New Era Ihiblications, 873 F.2d at 583; Salinger, 811 F.2d at 97 (2d. Cir.).
69. Indeed, William Landes suggests that from an economic efficiency perspective copyright protection of unpublished works created for private purposes (i.e., that are not going to be published) should be relatively weak. William M. Landes, Copyright Protection of letters, Diaries, and Other Unpublisiied Works: An Economic Approach, 21J. LEGAL STUD. 79 (1992).
70. Empirical data in the context of libel actions suggest that the majority of libel victims believe that money damages cannot make good their injuries. Twenty percent of the victims believe that no remedy can adequately redress their harms. See Rendall P. Bezanson, John Soloski & Gilbert Cranberg, LIBEL LAW AND THE PRESS MYTH AND REALITY 1-28 (1987). Alfred Yen maintains that these findings can be extended to authors whose works have been parodied or harshly reviewed. Alfred C. Yen, Wien Authors Won't Sell; Parody, Fair Use, and Efficiency in Copyright IMJV, 62 U. COLO. L. REV. 79, 105-6 (1991).
71. In many respects Fisher's test parallels a test offered by Louis Kaplow in the context of patents. See Louis Kaplow, The Patent-Antitrust Intersection: A Reappraisal, 97 HARV. L. REV. 1813 (1984).
72. Fisher, sufira note 10, at 1707.
73. Id at 1706.
74. Specifically, Fisher suggests that each judge, after devising an incentive/loss ratio for each putatively infringing use, should arrange the various uses on the X-axis in order of their ratios and thereafter plot a graph of the u[n]et impact on economic efficiency of forbidding each successive use.” Based on this graph, the judge has to determine the use at which the net-efficiency curve peaks and then declare all the uses to the right of this point fair, and all the uses to the left of this point unfair. For a graphical illustration of this determination, see id. at 1716.
75. Id. at 1718.
76. Under the typology of Calabresi and Melamed, the fair use doctrine constitutes a property rule, or at least a variant thereof. Under their definition, a right is protected by a property rule when a transfer of an entitlement requires the ex-ante consent of the holder thereof. Liability rules protect entitlements by granting the owner a claim for compensation whenever the value of the entitlements is diminished by the actions of other people. & Guido Calabresi & A. Douglas Melamed, Ihvperty RuUs, Liability Rules and Inalienability: One Vmu of the Cathedral 85 HARV. L. REV. 1089 (1972) [hereinafter: Calabresi and Melamed].
77. The public also suffers an indirect loss when fair use is awarded because any such award-by the lights of economic analysis-adversely impacts the incentive of the original author to create in the future.
78. For many years law and economics literature has suggested that when transaction costs are high, liability rules are superior to property rules. See, e.g., Calabresi and Melamed, The public also suffers an indirect loss when fair use is awarded because any such award-by the lights of economic analysis-adversely impacts the incentive of the original author to create in the future. note 80; Richard A. Posner, ECONOMIC ANALYSIS OF LAW 57,70 (4th ed. 1992). The most recent writings in this field suggest, however, that liability rules are better suited to enhance economic efficiency than property rules under circumstances of imperfect information. See, e.g., Ian Ayres & Eric Talley, Solomonic Bargaining: Dhnding a Isgal Entitlement to Facilitate Cosean Trade, 104 YAI.E L. J. 1027 (1995): also Louis Kaplow & Steven Shavell, Prof>erty Rules Versus Uability Rules: An Economic Analysis, 109 HARV. L. REV. 713 (1996).
79. Linda J. Lacey, s'uftranoic 11. 1584-93 (1989).
80. Id. at 1587.
81. Id. at 1572. The data Lacey offers suggest that 70 percent of the authors who published at least one book are engaged in another work other than writing. No inferences can be made based on these data as to what impels authors to create. The use of these data to support the argument that authors do not expect monetary rewards is highly inadequate.
82. 8G. Bleistcin v. Donaldson Lithographic Co., 188 U.S. 239 (1903).
83. Lacey, 8G. Bleistcin v. Donaldson Lithographic Co. note 11, at 1588.
84. Id. at 1591.
85. Loren E. Lomsky, Rights without Stills, 12 HARV. J. L. & PUB. PoL'Y 775, 777 (1989). See also David Lyons, Utility and Rights, 24 NOMOS 107, 111 (1982).
86. Robert Nozick, ANARCHY, STATE AND UTOPIA 30-31 (1974).
87. Ronald Dworkin, TAKING RIGHTS SERIOUSLY xi (1977).
88. Sttjules L. Coleman &Jody Krauss, Rethinking the Tlieory oJUgal Rights, 95 YALE L. J. 1335, 1339 (1986).
89. Lyons, Rethinking the Tlieory oJUgal Rights note 89, at 112.
90. A duty in corrective justice is agent-specific because only the wrongdoer, and no other, is obliged to make good the losses one caused. A duty in distributive justice is agent-general in the sense that every member of society is required to comply with the demands of the just allocation. Scegrnemlly Colcman and Ripstein, Rethinking the Tlieory oJUgal Rights note 89 note 54, at 91.
91. Aristotle, THE NICHOMACHEAN ETHICS, book V, 293-302 (W.D. Ross trans., 1925).
92. As Coleman points out, only seldom do the losses of victim and the gain of the injurers overlap. Jules L. Coleman, MARKETS, MORALS AND THE LAW 185-87 (1988).
93. Coleman, Risks and Wrongs, As Coleman points out, only seldom do the losses of victim and the gain of the injurers overlap. note 49, at 352.
94. Id.
95. Jules L. Coleman, IntellectualI'wjvrly and Correctivejustice, 78 VA. L. REV. 283,287 (1992) [hereinafter: Coleman, Intellectual Property].
96. Id.
97. Coleman, Risks and Wrongs, Id. note 49, at 329-332. See flisojules L. Coleman, Tort Liability and tfie Umits of Corrective Justice, in IN HARMS WAY 139,141 (Jules L. Coleman & Allen Buchanan eels., 1994) [hereinafter. Coleman, Tort Liability].
98. Coleman, Risks and Wrongs, id. at 331.
99. Id. See also Coleman, Tort Liability, Risks and Wrongs note 102, at 141.
100. The classic case of private necessity is Vincent v. Lake Erie Transportation Co., 109 Minn. 456, 124 N.W. 221 (1910). In this case the defendant left his ship moored at the plaintiffs dock during a nvewlay storm. As a result the ship was battered against the dock, causing $500 in damages. The Minnesota Supreme Court held that keeping the ship moored to the plaintiffs deck was reasonable under the circumstances, but nevertheless it granted compensation to the plaintiff because the defendant availed himself of the plaintiff property. But 5/r Ploof v. Puntam, 81 VL 471, 71 A. 188 (1908) (a dock owner whose sen-ant unmoored the plaintiffs ship during a storm was held liable for the damage that was caused to the ship and its passengers).
101. Coleman, Risks and Wrongs, The classic case of private necessity is Vincent v. note 49, at 310-41. See fl&ojoel Feinberg, Voluntary Euthanasia and the Right to Life, 7 PHIL. PUB. AFF. 93, 102 (1978).
102. Folsom, Risks and Wrongs, 9 F. Cas. 342, 348 (C.C.D. Mass. 1841) (No. 4,901) citing Iiramwell v. Halcomb 3 My. 8c Cr. (Ch.) 737 (1836).
103. See, e.g., Frank H. Eastbrook, Intellectual Ihoperty Is Still Property, 13 HARV. J. L. & PUB. POLY 108, 118 (“Except in the rarest cases, we should treat intellectual property and physical property identically in the law-which is where the broader currents are taking us in a sweep no hull protection will stop”). For a comprehensive discussion of the similarities and the difference between intangible and real property, see Gordon, An Inquiry, Risks and Wrongs note 30.
104. It is a longstanding principle of American constitutional law that taking of private property cannot serve private ends. SwCatdcrv. Bull 3 U.S. (3 Dall.) 368,388 (1798) (seriatim opinion); also Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAW § 9-2 at 457-58 (1978).
105. On the relation between corrective justice and tort law, see generally Colcman, Risks and Wrongs, It is a longstanding principle of American constitutional law that taking of private property cannot serve private ends. note 49, at 361-429, and Coleman, Tort Liability, It is a longstanding principle of American constitutional law that taking of private property cannot serve private ends. note 102. Richard A. Epstein, Property and Necessity, 13 HARV.J. L. & Pun. POI/Y2 (1990).
106. Russ (Ch.) 385, 390-91 (1826).
107. Fletcher, Russ note 13.
108. Id. at 551. Excuses are highly irrelevant to copyright infringement cases.
109. Coleman, Risks and Wrongs, Excuses are highly irrelevant to copyright infringement cases. note 49, at 358.
110. Id. at 358-59; Fisher, Risks and Wrongs note 10, at 1681 n.100 and the sources cited therein.
111. Coleman, irf. at 359-60. Seealso Richard A. Epstein, International News Service u Associated Press: Custom and IMIO as Sources of Ihoperty Rights in Nexvs, 78 VA. L. REV. 85, 86 (1992) [hereinafter: Epstein, Custom and Law] (“All persons who gain from the use of the custom generally may lose from its application in a particular case. Therefore, when a dispute arises, the outcome effectively binds the litigant, who now has every incentive to deviate from it”).
112. Customs and conventions play an important role in various areas of the law. See, e.g., U.S.C. § 1-102 (providing that the aim of the Code is “to permit the continued expansion of commercial practices through custom, usage and agreement of the parties”).
113. As Chafee pointed out “[t]he world goes ahead because each of us builds on the work of our predecessors. A dwarf standing on the shoulders of a giant can see farther than the giant” Zechariah Chafee, lie/lections on the IMW of Copyright, 45 COLUM. L. REV. 503,511 (1945).
114. U.S.C. § 102(b) (1994) (“[i]n no case does copyright protection foran original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work”). The idea/expression dichotomy is a longstanding principle in copyright law. It was first introduced in the celebrated case of Baker v. Scldcn, 101 U.S. 99 (1879). See also Goldstein, Copyright: Principles, sufira note 5, § 2.3 at 2:23.
115. This principle is known as the “merger doctrine”: When there are only a few ways to effectively express an idea, the idea and its expression merge and no copyright protection attaches. See, e.g., Baker v. Selden, 101 U.S. 99 (1879); Morrisey v. Procter & Gamble Co., 379 F.2d675(lstCir. 1967).
116. See Ellickson, This principle is known as the “merger doctrine” note 1, at 260. But see Princeton University Press v. Michigan Document Service Inc., 99 F. 3d 1381 (6th Cir. 1996) (en bane) cert, denied 117 S. Ct. 1336 (1997); also Basic Books, Inc. v. Kinko's Graphic Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991).
117. Campbell, 510 U.S. at 584.
118. See, e.g., Harfer& Raw, 471 U.S. at 564 (“[t]he law generally recognizes a greater need to disseminate factual works than works of fantasy or fiction”); rtlsoPatry, ranote 3, at 504-7.
119. See, e.g., Leval, (“[t]he law generally recognizes a greater need to disseminate factual works than works of fantasy or fiction”); note 2, at 1116 (The nature of the copyrighted work is a factor that has been only superficially discussed and little understood”), and Patry, trf. at 505.
120. Sony, 464 U.S. at 451.
121. Id. at 478-82 (Blackmun, J. dissenting).
122. 7rf.at489.
123. Goldstein, Copyright's Highway, 7rf.at489 note 39, at 158.
124. It is important to note that the act does not state that home audiotaping for private purposes is not a copyright infringement. Instead, it provides that “no action may be brought under this title alleging infringement of copyright.* 17 U.S.C. § 1008 (1994). According to Goldstein the distinction between “exemption against infringement and a prohibition against suing for infringement”-although fine-has a “powerful symbolic effect for copyright owners.” Id. at 163.
125. For a more detailed description see 17 U.S.C. §§ 1003-1007 (1994).
126. Harper 6 s Row, 471 U.S. at 550 (citing A. Latman, FAIR USE OF COPYRIGHTED WORKS 15 (1958)).
127. Id at593.
128. For another example of resort to industry practices see Triangle Publications v. Knight-Ridder Newspapers, 626 F.2d 1171 (5th Cir. 1980). But see Fisher, Id at593 note 10, at 1680 (arguing that if courts ought to look beyond positive law they will not be able to identify the relevant conventions and standards); and Leval, Id at593 note 2, at 1126 (arguing that there is no justification for considering morality as part of the fair use inquiry).
129. Epstein, Custom and Law, For another example of resort to industry practices see Triangle Publications v. Knight-Ridder Newspapers note 116, at 97.
130. Goldstein, Copyright in the New Information Age, Custom and Law note 61, at 1.
131. See, e.g., Maureen O'Rourke, Propriety Rights in Digital Data, 41 FED. BAR. NEWS &J. 511.
132. (1991). More specifically, such uses may isolate the author's exclusive right to prepare derivative works based on the original copyrighted work. Ilene Knable Gotts & Alan D. Rutenberg, Navigating Oie Global Information Superhighway: A liumfry Road Ues Ahead, 8 IlARV. J. L. & TECH. 275,318 (1996).