Copyright as Trade Regulation



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Conclusion

In this Article, I have argued that in the name of “encourag[ing] … learning” by inducing acts of creation, lawmakers are using copyright law to satisfy demands for private rights at the expense of other public interests in copyright. Those other public interests include, of course, public access to copyrighted expression, but they also include open and populous markets in expression as well as expressive diversity. At times, some of these interests may conflict: Giving creators (and their assigns) the right to exclude the public from using copyrighted works necessarily would inhibit at least some access; and promoting free competition in the market for copyrighted works likely would undermine the inducement of creation. I have proposed to mediate these conflicts by conceiving of copyright law as a prohibition against acts of unfair competition, whether by producers or consumers.

Under this conception, copyright infringement would consist of the infliction of “competitive harm” in a “relevant market,” which terms I have proposed to define by asking what rights creators are entitled to expect to enjoy when they engage in the act of creation. Those rights would vary by type of work. As regards “printed works” (i.e., works created for the purpose of existing in more than one copy), I have argued that creators are not entitled to expect the right to exclude others from engaging in acts of private copying (or adaptation), which acts, standing alone, do not act as market substitutes to any significant extent. Instead, I have argued that those creators are entitled to expect only the exclusive right to distribute copies (and perhaps, derivatives) of those works to the public—as if, for example, section 106 of the Copyright Act were to provide copyright owners only with “the exclusive right[ ] … to distribute copies or derivatives of the copyrighted work to the public …” As Professor Patterson once put it, “if copyright encourages creation, it does so only for the purpose of profit,” which profit “cannot be obtained without distribution.”276

Because this profit depends on public distribution, acts of public distribution are public behaviors that threaten to cause competitive (i.e., public) harms. But acts of copying are not. For too long, lawmakers have sought to punish private behaviors (like acts of copying) on the theory that copyright exists to maximize the earnings and therefore the incentives of the producers who subsidize acts of creation. As we have seen, however, copyright exists primarily to provide the public with meaningful access to diverse forms of expression from an abundance of sources. Google is proposing to provide such meaningful access, and there are thousands of other “ordinary user[s]”277 who might provide such diversity and abundance. The only thing standing in their way is a copyright law that attaches legal significance to public and private acts alike, regardless of the impact of those acts on the market in copies of copyrighted works. It is time for lawmakers to conceive of copyright law not as a means of granting property rights, but as a means of using property rights to promote fair competition in the marketplace of expression.



* B.A., Emory; J.D., Virginia, Associate Professor of Law, Emory University School of Law. I am very grateful to my colleagues Thomas C. Arthur, Michael S. Kang, William T. Mayton, Robert A. Schapiro, and George B. Shepherd for providing me with their comments on an earlier draft of this Article.

1 17 U.S.C. § 107.

2 Professor Wendy Gordon articulated this theory more than twenty years ago, and her work has inspired dozens of response—too many to cite here. 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, 1616 (1982) (“[F]air use implies the consent of the copyright owner by looking to whether the owner would have consented under ideal market conditions.”).

3 See Wendy J. Gordon, Excuse and Justification in the Law of Fair Use: Transaction Costs Have Always Been Only Part of the Story, 50 J. Copyright Soc’y U.S.A. 149, 155, 155 (2003) (noting that the “excuse” type of fair use “should and does disappear if, because of institutional or technological change, the excusing circumstances disappear”); Jane C. Ginsburg, From Having Copies to Experiencing Works: the Development of an Access Right in U.S. Copyright Law, 50 J. Copyright Soc’y U.S.A. 113, 125 (2003) (“[T]he ‘market failure’ genre of fair use should fade away in a world of perfect price discrimination ...”); Diane Leenheer Zimmerman, The More Things Change The Less They Seem “Transformed”: Some Reflections on Fair Use, 46 J. Copyright Soc’y U.S.A. 251, 265 (1998) (“Implicit in Professor Gordon’s approach to fair use, however, is an element of temporal instability …”) (citing Gordon, supra note 2).

4 See Paul Goldstein, Fair Use in a Changing World, 50 J. Copyright Soc’y U.S.A. 133, 137 (2003) (“For the great bulk of uses previously excused because of transaction costs, the [fair use] doctrine will simply become irrelevant.”).

5 See Wendy J. Gordon, Fair Use: Threat or Threatened?, 55 Case W. Res. L. Rev. 903, 906 (2005) (describing the “common claim … that fair use is dead). Cf. Glynn S. Lunney, Jr., The Death of Copyright: Digital Technology, Private Copying, and the Digital Millennium Copyright Act, 87 Va. L. Rev. 813 (2001); Robert C. Denicola, Mostly Dead? Copyright Law in the New Millennium, 47 J. Copyright Soc’y U.S.A. 193 (2000).

6 Since publishing her groundbreaking article cited in supra note 2, Professor Gordon has defined “market failure” more broadly to take into account considerations of social justice. She now believes that “it makes sense to use the term ‘market failure’ broadly, whenever we have grounds to believe that bad results will follow from adhering to the rule of owner deference.” Wendy J. Gordon, supra note 3, at 164. See also Dan L. Burk & Julie E. Cohen, Fair Use Infrastructure for Rights Management Systems, 15 Harv. J.L. & Tech. 41, 44 (2001) (“The 2 Live Crew case thus is emblematic of a second type of market failure in which the value of socially beneficial uses of copyrighted works is not fully internalized.”)

7 See Michael J. Madison, Rewriting Fair Use and the Future of Copyright Reform, 23 Cardozo Arts & Ent. L.J. 391, 396 (2005) (“[T]he statute itself has become not the embodiment of copyright’s blended nature, as Professor Weinreb argued, but a placeholder for all manner of arguments about limits …”); id. at 402 (“The substantive emptiness of fair use makes it something of a dumping ground for copyright analysis that courts can’t manage in other areas.”).

8 See Gordon, supra note 5, at 904 (discussing arguments as to why fair use is “dangerous”); see also Jessica Litman, Copyright as Information Policy, 55 Law & Contemp. Probs. 185, 205 (1992) (criticizing the “bromide” that “[w]e do not have to worry about the use of copyright to impede the dissemination of ideas and information … because fair use is there to privilege such uses”).

9 Jonathan Band, Office for Information Technology Policy, American Library Association, The Google Library Project: The Copyright Debate, Jan. 2006, at 9, found at (copy on file with the author).

10 17 U.S.C. § 106(1).

11 Id. § 101.

12 The information in volatile memory, such as “random access memory” (or “RAM”), is lost when power to the computer is interrupted. By contrast, nonvolatile memory, such as a hard disc drive or a flash memory device (“thumb drive”), can retain stored information even when the computer or device is not powered.

13 They are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.



17 U.S.C. § 107.

14 See 17 U.S.C. § 107(1).

15 See American Geophysical Union v. Texaco Inc., 60 F.3d 913, 922 (1994).

16 See id. at 929 n.17 (“[W]ere a court automatically to conclude in every case that potential licensing revenues were impermissibly impaired simply because the secondary user did not pay a fee for the right to engage in the use, the fourth fair use factor would always favor the copyright holder.”) (citations omitted).

17 Id. at 930 (citing, inter alia, Campbell v. Acuff-Rose Music , Inc., 510 U.S. 569, 592 (1994) (“The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop.”); Harper & Row Pubs., Inc. v. Nation Enters., 471 U.S. 539, 568 (1985) (observing that the fourth factor is concerned with “use that supplants any part of the normal market for a copyrighted work”) (quoting S. Rep. No. 473, 94th Cong., at 65 (1975)).

18 Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 615 (2006) (quoting Castle Rock Entm’t, Inc. v. Carol Publ’g Group, 150 F.3d 132, 146 n.11 (2d Cir. 1998)).

19 510 U.S. 569 (1994).

20 Id. at 584.

21 Id. at 591 (citations omitted).

22 Id. at 579.

23 Id.

24 See American Geophysical Union v. Texaco Inc., 60 F.3d 913, 929 n.17 (1994).

25 Erin Crum, HarperCollins Publishers, HarperCollins Publishers to Create Digital Content Warehouse, Press Release, Dec. 12, 2005, found at (copy on file with the author).

26 Erin Crum, HarperCollins Publishers, HarperCollins Publishers Selects Newsstand, Inc. to Develop Global Digital Warehouse, Press Release, Apr. 10, 2006, found at (copy on file with the author).

27 In Kelly v. Arriba Soft Corporation, 336 F.3d 811 (9th Cir. 2003), for example, the Ninth Circuit Court of Appeals found transformation in the reproduction of digital photographic images as part of a search engine. Even though the images themselves were unchanged, except in size, the court noted that the defendant was using the images to “serve[ ] a different function” than was the plaintiff—i.e., “improving access to information on the internet versus artistic expression.” Id. at 818, 819. Because the defendant reduced the images into “thumbnails,” the court also found it unlikely that anyone using the search engine would be able to substitute the thumbnails for the original images; “enlarging them sacrifices their clarity.” Id. at 819; but see Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828, 847 (C.D. Cal. 2006) (distinguishing Kelly because “Google’s use of thumbnails on its image search [is] far more commercial than Arriba’s use” and “Google’s thumbnails lead users to sites that directly benefit Google’s bottom line [through advertising revenues]”).

28 Campbell v. Acuff-Rose Music , Inc., 510 U.S. 569, 579 (1994).

29 See id. at 597 (“It is not enough [for the purposes of fair use] that the parody use the original in a humorous fashion, however creative that humor may be. The parody must target the original, and not just its general style, the genre of art to which it belongs, or society as a whole (although if it targets the original, it may target those features as well).”) (Kennedy, J., concurring).

30 Id. at 579.

31 Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111 (1990).

32 See Lloyd L. Weinreb, Fair’s Fair: A Comment on the Fair Use Doctrine, 103 Harv. L. Rev. 1137, 1143 (1990) (“A use may serve an important, socially useful purpose without being transformative, simply by making the copied material available.”).

33 L. Ray Patterson, Understanding Fair Use, 55 SPG Law & Contemp. Probs. 249, 249 (1992). See also Jessica Litman, War Stories, 20 Cardozo Arts & Ent. L.J. 337, 365 (2002) (“Whether to impose a complicated legal regime on individual consumer consumption of copyrighted works is a crucial question on which reasonable people might differ violently. Resolving it requires us to decide what we have a copyright law for.”).

34 See Leval, supra note 31, at 1110. In proposing that fair use depend “primarily on whether, and to what extent, the challenged use is transformative,” id. at 1111, Judge Leval opined that “[f]air use should not be considered a bizarre, occasionally tolerated departure from the grand conception of the copyright monopoly.” Id. at 1110 (emphasis added). Yet this is precisely what fair use has become, in part because of the emphasis on transformation itself.

35 See Julie E. Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of “Rights Management”, 97 Mich. L. Rev. 462, 492 (1998) (“Market ordering presupposes some ex ante distribution of entitlements. The cybereconomists take existing entitlements as given, and do not inquire as to the welfare effects of alternative entitlement structures.”).

36 Julie E. Cohen, Copyright’s Public-Private Distinction, 55 Case W. Res. L. Rev. 963, 967 (2005).

37 See U.S. Const. art I, § 8, cl. 8 (granting to Congress the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their Writings and Discoveries.”)

38 I do not take a position in this Article as to whether, and to what extent, creators should enjoy the exclusive right to make derivatives of their works. See 17 U.S.C. § 106(2). I leave that question for another day (and another article).

39 See supra note 5 and accompanying text.

40 See Mark A. Lemley, Romantic Authorship and the Rhetoric of Property (Book Review), 75 Tex. L. Rev. 873, 895 (1997) (“The idea of propertization begins with a fundamental shift in the rhetoric of intellectual property law…. [O]nly recently has the term ‘intellectual property’ come into vogue.”); id. at 900 (noting the view that “information is property and somebody should own it”). See also L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vand. L. Rev. 1, 32 (1987) (“The Constitution creates no property rights.”).

41 Thomas Jefferson, Letter to Isaac McPherson, August 13, 1813, in Thomas Jefferson: Writings 1291-92 (Library of Am. 1984).

42 Patterson, supra note 40, at 32.

43 See U.S. Const. art I, § 8, cl. 8.

44 See Leval, supra note 31, at 1110-11 (“The [statutory] factors …. direct courts to examine the issue from every pertinent corner and to ask in each case whether, and how powerfully, a finding of fair use would serve or disserve the objectives of the copyright.”).

45 U.S. Const. art I, § 8, cl. 8.

46 See Act of May 31, 1790, ch. 15, 1 Stat. 124 (1790).

47 See U.S. Const. art I, § 8, cl. 8. By “Science,” the framers meant knowledge or learning. Eldred v. Ashcroft, 537 U.S. 186, 243 (2003) (Breyer, J., dissenting) (citing Edward C. Walterscheid, The Nature of the Intellectual Property Clause: A Study in Historical Perspective 125-26 (2002)).

48 See James Madison (“Publius”), Federalist Paper No. XLIII, in James Madison, Alexander Hamilton, & John Jay, The Federalist Papers 279 (Penguin 1987) [hereinafter Federalist Papers], quoted in Eldred, 537 U.S. at 212 n.18.

49 17 U.S.C. § 202.

50 See Arguments on the Bills S. 6330 and H.R. 19853, to Amend and Consolidate the Acts Respecting Copyright, Committee on Patents, H.R., 59th Cong., 164 (1906):

Mr. WALKER. According to this bill as you understand it, would it be competent for an author to print under his copyright notice a reservation prohibiting people from doing anything with that book except reading it themselves? Would it be competent for the author to prohibit the sale of that book by the purchaser?

Mr. STEUART. Yes, sir…. [U]nder the absolute right of the author, he could make any reservation he pleased. In other words, this so-called sale would be nothing but a license to read.

Mr. MCKINNEY. May I ask a question, Mr. Steuart? Was it the object of the draftsmen of this bill to break up the second-hand book business?

Mr. STEUART. Not at all.

(Statement of Arthur Steuart.)



51 As Professor Benkler explained, “Users are individuals who are sometimes consumers, sometimes producers, and who are substantially more engaged participants, both in defining the terms of their productive activity and in defining what they consume and how they consume it.” Yochai Benkler, Freedom in the Commons: Towards a Political Economy of Information, 52 Duke L.J. 1245, 1268 (2003).

52 17 U.S.C. §§ 106(1)-(3).

53 Id. §§ 106(4)-(6).

54 Fogerty v. Fantasy, Inc., 510 U.S. 517, 527 (1994) (emphasis added).

55 Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) (emphasis added); see also Eldred v. Ashcroft, 537 U.S. 186, 241 (2003) (“[U]ltimate public access is the overriding purpose of the constitutional provision.”) (Stevens, J., dissenting); Stewart v. Abend, 495 U.S. 207, 228 (1990) (in “balanc[ing] … the artist’s right to control the work during the term of the copyright protection and the public’s need for access to creative works,” “[t]he copyright term is limited so that the public will not be permanently deprived of the fruits of an artist’s labors.”).

56 Stewart, 495 U.S. at 228-29 (“[N]othing in the copyright statutes would prevent an author from hoarding all of his works during the term of the copyright.”).

57 See Harper & Row Pubs., Inc. v. Nation Enters., 471 U.S. 539, 569 (1985) (“Any copyright infringer may claim to benefit the public by increasing public access to the copyrighted work.”).

58 See Fogerty, 510 U.S. at 527 (emphasis added).

59 See Act of May 31, 1790, ch. 15, 1 Stat. 124 (1790).

60 Glynn S. Lunney, Jr., Reexamining Copyright’s Incentives-Access Paradigm, 49 Vand. L. Rev. 483, 486 (1996).

61 Id. at 487.

62 See id. There are exceptions to this rule. In Meeropol v. Nizer, 361 F. Supp. 1063 (S.D.N.Y. 1973), the district court found the distribution of a book about Julius and Ethel Rosenberg to “serve the public interest in the free dissemination of information,” even though it contained portions of their copyrighted letters. Id. at 1068 (citation omitted). Similarly, in Time Inc. v. Bernard Geis Associates, 293 F. Supp. 130 (S.D.N.Y. 1968), the district court refused to halt the publication of a book containing copies of frames of the Zapruder film, holding, in part, that “[t]here is a public interest in having the fullest information available on the murder of President Kennedy.” Id. at 146. As precedents, however, these cases are exceptionally weak. Not only did they arise from events of unusual historic importance, but other courts have questioned whether they were rightly decided, even on their unusual facts. See, e.g., New Era Pubs. Int’l v. Henry Holt & Co., 873 F.2d 576, 589-90 (2d Cir. 1989) (“The district court [in Bernard Geis] … may not have properly evaluated the potential economic harm to the owner of the copyright in granting summary judgment to the defendants.”) (citing W. Patry, The Fair Use Privilege in Copyright Law 98-100 (1985)); Jackson v. MPI Home Video, 694 F. Supp. 483, 489 (N.D. Ill. 1988) (“To the extent [Bernard Geis] rests upon the idea that copyright must yield where ‘there is a public interest in having the fullest information available in the murder of President Kennedy’, it is probably inconsistent with Harper & Row v. Nation Enterprises, 471 U.S. 539 … (1985).”).

One other case bears mentioning. In Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), the Supreme Court cited a finding by the district court that copying television programs for later viewing “served the public interest in increasing access to television programming.” According to the district court, that interest was “‘consistent with the First Amendment policy of providing the fullest possible access to information through the public airwaves.’” Id. at 425 (citations omitted). The Supreme Court seems to have agreed with this analysis. See id. As Professor Jessica Litman has chronicled, however, Sony was an exceptional case in every way. See generally Jessica Litman, The Sony Paradox, 55 Case W. Res. L. Rev. 917, 929 (2005).



63 See Leval, supra note 31, at 1110.

64 Act of July 2, 1890, ch. 647, 26 Stat. 209.

65 Act of Oct. 15, 1914, ch. 323, 38 Stat. 730.

66 Act of Sept. 26, 1914, ch. 311, 38 Stat. 717.

67 Act of June 19, 1934, ch. 652, 48 Stat. 1064.

68 Act of July 5, 1946, ch. 540, 60 Stat. 444.

69 Pub. L. No. 102-385, 106 Stat. 1460 (Oct. 5, 1992).

70 Pub. L. No. 104-104, 110 Stat. 56 (Feb. 8, 1996).

71 Cf. In re Trade-Mark Cases, 100 U.S. 82 (1879) (holding that Congress did not have the authority to promulgate trademark legislation pursuant to Article I, Section 8, Clause 8 of the Constitution).

72 See 17 U.S.C. § 102(a) (“Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”).

73 See Maureen A. O’Rourke, Toward a Doctrine of Fair Use in Patent Law, 100 Colum. L. Rev. 1177, 1181 (2000) (“[I]ntellectual property law is part of a larger framework that includes other public and private law, including, particularly, antitrust.”).

74 Act of July 2, 1890, ch. 647, §§ 1, 2, 26 Stat. 209, 209.

75 Act of Oct. 15, 1914, ch. 323, §§ 2, 3, 7, 38 Stat. 730, 730-32; Dictograph Prods. v. Federal Trade Comm’n, 217 F.2d 821, 826 (2d Cir. 1954) (“Congress, in passing the Clayton Act, sought to bring within the scope of its proscriptive provisions, conduct and practices which though dangerous to the competitive structure, were not covered at all or only inadequately covered by the provisions of the Sherman Act.”).

76 Act of Sept. 26, 1914, ch. 311, §§ 1, 5, 38 Stat. 717, 717-19.

77 Butterick Publ’g Co. v. Federal Trade Comm’n, 85 F.2d 522, 526 (2d Cir. 1936) (citing Federal Trade Comm’n v. Raladam Co., 283 U.S. 643 (1931); Federal Trade Comm’n v. Sinclair Co., 261 U.S. 463 (1923)).

78 See Herbert Hovenkamp, Federal Antitrust Policy: The Law of Competition and Its Practice § 2.1a (2d ed. 1999)

79 Id. § 2.1a, at 50-51.

80 See Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 117-18 (1986) (“Predatory pricing may be defined as pricing below an appropriate measure of cost for the purpose of eliminating competitors in the short run and reducing competition in the long run. It is a practice that harms both competitors and competition.”).

81 United States v. American Linseed Oil Co., 262 U.S. 371, 388 (1923).

82 See Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 4 (1958) (“The Sherman Act … rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress …”); Apex Hosiery Co. v. Leader, 310 U.S. 469, 492-93 (1940) (noting that the Sherman Act was intended to prevent “transactions which tended to restrict production, raise prices or otherwise control the market to the detriment of purchasers or consumers of goods and services, all of which had come to be regarded as a special form of public injury.”); Beal Corp. Liquidating Trust v. Valleylab, Inc., 927 F. Supp. 1350, 1367 (D. Colo. 1996) (“The federal antitrust laws seek to prevent manufacturers and sellers of products from exiting the market.”).

83 United States v. Syufy Enters., 903 F.2d 659, 668 (9th Cir. 1990).

84 See, e.g., Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 272 (2d Cir.1979) (noting that section 2 of the Sherman Act is designed to prevent “a pernicious market structure in which the concentration of power saps the salubrious influence of competition”), cert. denied, 444 U.S. 1093 (1980).

85 United States v. Aluminum Co. of Am., 148 F.2d 416, 428 (2d Cir. 1945).

86 Brown Shoe Company v. United States, 370 U.S. 294, 315-316 (1962); see also Monfort of Colorado, Inc. v. Cargill, Inc., 761 F.2d 570, 576 (10th Cir. 1985) (Noting that “Congress intended section 7 of the Clayton Act to prevent” industry concentration, which likely would result in “substantially lessened [competition] because of tacit collusion.”)

87 Aluminum Co. of Am., 148 F.2d at 429 (emphasis added).

88 See Red Lion Broadcasting v. Fed. Communications Comm’n, 395 U.S. 367, 390 (1969) (“It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market.”); United States v. Western Elec. Co., 673 F. Supp. 525, 585-86 (D.D.C. 1987) (“[I]n promoting diversity in sources of information, the values underlying the First Amendment coincide with the policy of the antitrust laws.”) (citation omitted); see also Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 4 (1958) (observing that Congress has used the antitrust laws to create an environment “conducive to the preservation of our democratic political and social institutions”).

89 326 U.S. 1 (1945).

90 Id. at 20. See also United States v. Associated Press, 52 F.Supp. 362, 372 (S.D.N.Y. 1943) (observing that that the media serve “one of the most vital of all general interests: the dissemination of news from as many different sources, and with as many different facets and colors as possible”), aff'd, 321 U.S. 1 (1945).

91 United States v. Hilton Hotels Corp., 467 F.2d 1000, 1003 (9th Cir. 1972) (citing Northern Pacific Ry., 356 U.S. at 4; D. R. Wilder Mfg. Co. v. Corn Products Refining Co., 236 U.S. 165, 174 (1915)).

92 Columbia River Packers Ass’n v. Hinton, 34 F. Supp. 970, 975 (D. Or. 1939) (citing Paramount Famous Lasky Corp. v. United States, 282 U.S. 30 (1930)).

93 Reiter v. Sonotone Corp., 442 U.S. 330, 342 (1979).

94 See William Goldman Theatres v. Loew’s, Inc., 150 F.2d 738, 743 (3d Cir. 1945) (“The purpose of the anti-trust laws [was] an intendement to secure equality of opportunity …”); Prairie Farmer Publ’g Co. v. Indiana Farmer’s Guide Publ’g Co., 88 F.2d 979, 982 (7th Cir. 1937) (“Clearly, the purpose of the Sherman Anti-Trust Act is to secure equality of opportunity …”) (citing Paramount, 282 U.S. at 42); El Aguila Food Products Inc. v. Gruma Corp., 301 F.Supp.2d 612, 627 (S.D. Tex. 2003) (Citing “an equal opportunity to engage in business, trade, and commerce” as “the primary feature of the private free enterprise system” that antitrust laws seek to safeguard).

95 See United States v. Aluminum Co. of Am., 148 F.2d 416, 429 (2d Cir. 1945).

96 See Timothy Wu, Copyright’s Communications Policy, 103 Mich. L. Rev. 278, 311-24 (2004).

97 Pub. L. No. 104-104, 110 Stat. 56 (Feb. 8, 1996).

98 Id. § 101(a), 110 Stat. 62, codified at 47 U.S.C. §§ 251(b)(3), (c)(3).

99 Pub. L. No. 102-385, 106 Stat. 1460 (Oct. 5, 1992).

100 See id. § 2(a)(4), 106 Stat. 1460 (“The cable industry has become highly concentrated. The potential effects of such concentration are barriers to entry for new programmers and a reduction in the number of media voices available to consumers.”).

101 Id. §§ 4, 5, 106 Stat. 1471-81.

102 Id. § 2(a)(11), 106 Stat. 1461 (“Broadcast television stations continue to be an important source of local news and public affairs programming and other local broadcast services critical to an informed electorate.”).

103 Turner Broadcasting System, Inc. v. Fed. Communications Comm’n, 520 U.S. 180, 189-90 (1997) (quoting Turner Broadcasting System, Inc. v. Fed. Communications Comm’n, 512 U.S. 622, 662 (1994)).

104 See Mark A. Lemley, Beyond Preemption: The Law and Policy of Intellectual Property Licensing, 87 Cal. L. Rev. 111, 170 (1999) (“Intellectual property is a deliberate, government-sponsored departure from the principles of free competition, designed to subsidize creators and therefore to induce more creation.”)

105 See, e.g., Dastar Corp. v. Twentieth C. Fox Film Corp., 539 U.S. 23, 33-34 (2003) (discussing the “copyright monopoly”).

106 Data Gen’l Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147, 1184-85 (1st Cir. 1994) (in performing its “duty to harmonize two conflicting statutes,” i.e., the Copyright Act and the Sherman Act,

107 Id. at 1184.

108 In re Indep. Serv. Orgs. Antitrust Litig., 203 F.3d 1322, 1325 (Fed.Cir.2000); see also Data Gen’l, 36 F.3d at 1185 (“Although creation and protection of original works of authorship may be a national pastime, the Sherman Act does not explicitly exempt such activity from antitrust scrutiny …”).

109 Christopher S. Yoo, Copyright and Price Differentiation, 79 N.Y.U. L. Rev. 212, 218 (2004).

110 Richard A. Epstein, Liberty Versus Property? Cracks in the Foundation of Copyright Law, 42 San Diego L. Rev. 1, 23 (2005).

111 Id.

112 Yochai Benkler, Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain, 66 SPG Law & Contemp. Probs. 173, 181 (2003).

113 Yochai Benkler, Intellectual Property and the Organization of Information Production, 22 Int’l Rev. L. & Econ. 81, 83 (2002).

114 See Wu, supra note 96, at 329 (discussing how vertical integration threatens innovation); Julie E. Cohen, Copyright and the Perfect Curve, 53 Vand. L. Rev. 1799, 1811 (2000) (“An imbalance may result if a particular content provider has a dominant market share, or a unique and nonsubstitutable work.”).

115 Benkler, supra note 113, at 83.

116 Id. at 93 (“The differential effects of increases in intellectual property protection on divergent strategies suggest that such increases lead to commercialization, concentration, and homogenization of information production.”); see also Julie E. Cohen, Copyright, Commodification, and Culture: Locating the Public Domain, in The Future of the Public Domain 142 (P.B. Hugenholtz & L. Guibault, eds., 2006) (forthcoming) (“[T]he greater cultural standardization likely to occur under conditions of pervasive commodification is cause for substantial concern.”) (citing Benkler, supra note 113, at 81-99); Yochai Benkler, From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access, 52 Fed. Comm. L.J. 561, 575-76 (2000). As Professor Lunney put it, “[s]eeking the common denominator among a wider audience leads almost inevitably to a lower common denominator. As a result, striving for popularity may produce not a wonderful, cacophonous variety, but a dulling, repetitive sameness as works include over and over the same elements intended to cater to popular tastes …” Lunney, supra note 5, at 888-89; see also Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 Yale L.J. 283, 360 (1996) (“[G]iven market dictates and institutional risk-averseness, media conglomerates share, at least to some extent, corporate patrons’ proclivities toward prosaic and safe products.”). This cloud may have a silver lining. As Professor William Fisher has speculated, “[t]he less attractive the menu of material ‘on the air,’ the more time people would probably spend in more active leisure activities.” William W. Fisher III, Reconstructing the Fair Use Doctrine, 101 Harv. L. Rev. 1659, 1777-78 (1988).

117 Benkler, supra note 113, at 83.

118 Worse, perhaps, “increased prevalence of Mickeys should lead to increased investment in forming preferences for their products. This should increase relative demand for their products. Repackaging the Mouse becomes not only cost effective, but also responsive to demand.” Benkler, supra note 113, at 97-98. See also Netanel, supra note 116, at 352 (“The public communication of fixed original expression will support a democratic civil society only if such expression is autonomous and diverse.”).

119 Ethyl Gasoline Corp. v. United States, 309 U.S. 436, 458 (1940) (“[T]he Sherman Act … is not only a prohibition against the infliction of a particular type of public injury but ‘a limitation of rights … which may be pushed to evil consequences, and therefore restrained.’”) (citations omitted). See also United States v. Microsoft Corp., 253 F.3d 34, 63 (D.C. Cir. 2001):

[Microsoft] … claims an absolute and unfettered right to use its intellectual property as it wishes: “[I]f intellectual property rights have been lawfully acquired,” it says, then “their subsequent exercise cannot give rise to antitrust liability.” That is no more correct than the proposition that use of one’s personal property, such as a baseball bat, cannot give rise to tort liability. As the Federal Circuit succinctly stated: “Intellectual property rights do not confer a privilege to violate the antitrust laws.”



(Citing In re Indep. Serv. Orgs. Antitrust Litig., 203 F.3d 1322, 1325 (Fed.Cir.2000).)

120 17 U.S.C. § 102(b).

121 Kern River Gas Transmission Co. v. Coastal Corp., 899 F.2d 1458, 1463 (5th Cir. 1990).

122 See U.S. Const. art I, § 8, cl. 8.

123 See, e.g., Dastar Corp. v. Twentieth C. Fox Film Corp., 539 U.S. 23, 33-34 (2003) (discussing the “copyright monopoly”).

124 This phrase is associated with Professor Neil Netanel, who has written extensively on the subject. See, e.g., Netanel, supra note 116, at 289 (arguing that neoclassical economists have “import[ed] [into copyright] a theory of property that fails adequately to account for our fundamental, nonmonetizable interests in expressive diversity and informed citizenship”).

125 It also resides at the heart of patent law. See United States v. Parker-Rust-Proof Co., 61 F. Supp. 805, 812 (E.D. Mich. 1945) (“The general objectives of the Patent Laws and the Anti-Trust Laws are the same. Both are intended to prevent unfair competition.”).

126 Restatement (Third) of Unfair Competition § 1 comment a (1995).

127 Id.

128 Dastar Corp. v. Twentieth C. Fox Film Corp., 539 U.S. 23, 27 n.1 (2003) (citation omitted); see also William R. Warner & Co. v. Eli Lilly & Co., 265 U.S. 526, 530-31 (1924) (because “petitioner sought to avail itself of the favorable repute which had been established for respondent’s preparation in order to sell its own,” holding “[t]he charge of unfair competition [to be] established”).

129 See Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 413 (1916) (“[T]he common law of trademarks is but a part of the broader law of unfair competition.”).

130 Id. at 412.

131 Id..

132 Act of July 5, 1946, ch. 540, 60 Stat. 444. The Lanham Act complemented the Federal Trade Commission Act of 1914, which had empowered the Commission to bring enforcement actions against those “persons, partnerships, and corporations” engaging in “unfair methods of competition in commerce.” Act of Sept. 26, 1914, ch. 311, §§ 1, 5, 38 Stat. 717, 717-19.

133 S. Rep. No. 1333, 79th Cong., at 1 (1946), reprinted in 1946 U.S.C.C.A.N. 1274, 1274.

134 Coach House Restaurant, Inc. v. Coach and Six Restaurants, Inc., 934 F.2d 1551, 1564 (11th Cir. 1991); see also James Burrough, Ltd. v. Sign of Beefeater, Inc., 540 F.2d 266, 274 (7th Cir. (in trademark infringement action, observing that “[a] third party, the consuming public, is present and its interests are paramount”).

135 See Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 413 (1916) (“Common-law trademarks, and the right to their exclusive use, are of course to be classed among property rights, but …. the right grows out of use, not mere adoption.”).

136 As the Eleventh Circuit Court of Appeals recently observed, “the word ‘publication’ is ‘a legal word of art, denoting a process much more esoteric than is suggested by the lay definition of the term.’” Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 194 F.3d 1211, 1214 n.3 (11th Cir. 1999) (quoting Melville B. Nimmer, Copyright Publication, 56 Colum. L. Rev. 185, 185 (1956)).

137 See Academy of Motion Picture Arts & Sciences v. Creative House Promotions, Inc., 944 F.2d 1446, 1452 (9th Cir. 1991).

138 Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492, 495 (2d Cir. 1961).

139 Id.

140 Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 412 (1916).

141 Patterson, supra note 40, at 6.

142 See U.S. Const. art I, § 8, cl. 8 (granting to Congress the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their Writings and Discoveries.”)

143 The Merriam-Webster Online Dictionary defines “public” as, inter alia, “exposed to general view: OPEN [definition 1a],” “of or relating to business or community interests as opposed to private affairs: SOCIAL [definition 4],” and “accessible to or shared by all members of the community [definition 6a].” Merriam-Webster OnLine Dictionary, available at (copy on file with the author). I do not use “public” to indicate “public law.” See id. (“of, relating to, or affecting all the people or the whole area of a nation or state [definition 2a] … of or relating to a government [definition 2b]”).

144 17 U.S.C. § 102(a).

145 Id. § 201(d). A producer also may obtain rights in a copyrightable work by being the “employer or other person for whom the work was prepared” under the “work made for hire” doctrine. See id. § 201(b).

146 15 U.S.C. § 1127.

147 See Blue Bell, Inc. v. Farah Mfg. Co., 508 F.2d 1260, 1267 (5th Cir. 1975).

148 17 U.S.C. § 106(1).

149 15 U.S.C. § 1114(1).

150 Patterson, supra note 40, at 6.

151 See Cohen, supra note 36, at 963-64 (arguing that “[c]opyright’s public-private distinction used to be clearly stated on the surface of the law and transparently visible in the law’s operation,” but that “[i]ncreasingly, for users, … the law no longer recognizes conduct in private.”)

152 Keene v. Wheatley, 14 F. Cas 180, 185 (C.C. Pa. 1861).

153 Copyright Act of 1976, Pub. L. No. 94-553, § 102(a), 90 Stat. 2541, 2544-45 (Oct. 19, 1976), codified as 17 U.S.C. § 102(a).

154 Jessica D. Litman, Copyright, Compromise, and Legislative History, 72 Cornell L. Rev. 857, 858-59 (1987) (“[T]he new statute makes a number of fundamental changes in the American copyright system, including some so profound that they may mark a shift in direction for the very philosophy of copyright itself.”) (quoting Barbara Ringer, then Register of Copyrights).

155 Sara K. Stadler, Forging a Truly Utilitarian Copyright, 91 Iowa L. Rev. 609, 641 (2006).

156 Act of July 8, 1870, ch. 230, § 86, 16 Stat. 198, 212.

157 Act of Mar. 3, 1865, ch. 126, § 1, 13 Stat. 540, 540; Act of Feb. 3, 1831, ch. 16, § 1, 4 Stat. 436, 436; Act of Apr. 29, 1802, ch. 36, § 2, 2 Stat. 171, 171; Act of May 31, 1790, ch. 15, § 1, 1 Stat. 124, 124.

158 See Patterson, supra note 33, at 259; see also Patterson, supra note 40, at 12.

159 Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 334 (1990) (quoting Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977)).

160 See Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 118 (1986) (“In contrast to price cutting aimed simply at increasing market share, predatory pricing has as its aim the elimination of competition. Predatory pricing is thus a practice ‘inimical to the purposes of [the antitrust] laws,’ and one capable of inflicting antitrust injury.”) (quoting Brunswick, 429 U.S. at 488).

161 Brunswick, 429 U.S. at 488 (quoting Brown Shoe Co. v. United States, 370 U.S. 294, 320 (1962)).

162 Restatement (Third) of Unfair Competition § 1 comment a (1995).

163 Id. § 1 & comment a.

164 510 U.S. 569 (1994).

165 Id. at 593; see also On Davis v. The Gap, Inc., 246 F.3d 152, 175-76 (2d Cir.2001) (observing that fair use would be found, notwithstanding the existence of market harm, “[i]f the harm resulted from a transformative … use that lowered the public’s estimation of the original (such as a devastating review of a book that quotes liberally from the original to show how silly and poorly written it is)”); Consumers Union of U.S., Inc. v. Gen’l Signal Corp., 724 F.2d 1044, 1051 (2d Cir. 1983) (“A court would not find it relevant … that [a] devastating critique had diminished sales by convincing the public that the original work was of poor quality.”)

166 See, e.g., Harper & Row Pubs., Inc. v. Nation Enters., 471 U.S. 539, 562 (1985) (“The Nation’s use had not merely the incidental effect but the intended purpose of supplanting the copyright holder’s commercially valuable right of first publication.”); Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1277 (11th Cir.2001) (“[T]he preliminary record … suggests that The Wind Done Gone will not act as a substitute for Mitchell’s original…. [F]urther factfinding may well reveal that these two books will act as complements rather than substitutes.”); On Davis, 246 F.3d at 175-76 (“If … the secondary use, by copying the first, offers itself as a market substitute and in that fashion harms the market value of the original, this factor argues strongly against a finding of fair use.”); Consumers Union, 724 F.2d at 1051 (“The fourth fair use factor will come into play if too much is copied or if the entire plot is revealed, thereby usurping the demand for the original work.”).

167 292 F.3d 512.

168 Id. at 517.

169 Id.

170 Id. (citing 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.05[B][1], at 13-193 (2002)).

171 As Judge Posner explained,

A photograph of a Beanie Baby is not a substitute for a Beanie Baby. No one who wants a Beanie Baby, whether a young child who wants to play with it or an adult (or older child) who wants to collect Beanie Babies, would be tempted to substitute a photograph. But remember that photographs of Beanie Babies are conceded to be derivative works, for which there may be a separate demand that Ty may one day seek to exploit …






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