1. Dellar v. Samuel Goldwyn. Inc., 104 F.2d 661. 662 (2d Cir. 1939).Google ScholarSee also Ellickson, Robert C., Order without Law, How Neighbors Settle Disputes, 258 (1991)Google Scholar (describing the fair use doctrine as “a murky area of law”); and Weinreb, Lloyd L., Fair's Fair A Comment on the Fair Use Doctrine, 103 Harv. L. Rev. 1137, 1137–38 (1990) [hereinafter Weinreb].CrossRefGoogle Scholar

2. See generally Pierre Leval, N., Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1105–6 (1990)CrossRefGoogle Scholar [hereinafter: Leval].

3. See generally Patry, William F.. The Fair Use Privilege in Copyright Law (2nd ed. 1995) 3–18Google Scholar [hereinafter: Patry].

4. Id. at 1106.

5. See, e.g., Goldstein, Paul, Copyright: Principles, Law and Practice, § 10.1 at 10:1–10:2 (2nd ed. 1995) [hereinafter Goldstein, Copyright: Principles].Google Scholar

6. Leval, , supra note 2, at 1106Google Scholar (“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), rev'd 366F.2d 303 (2d. Cir. 1966)Google Scholar, cert, denied, 385 U.S. 1009 (1967)Google Scholar 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 (C.D. Cal. 1979)Google Scholar, rev'd, 659 F.2d 963 (9th Cir. 1981)Google Scholar, rev'd 464 U.S. 417 (1984)Google Scholar 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)Google Scholar, rev'd 471 U.S. 539 (1985)Google Scholar 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)Google Scholar, rev'd, 811 F.2d 90 (2d. Cir.), cert, denied 484 U.S. 890 (1987)Google Scholar, 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), aff'don other grounds, 873 F.2d 576 (2d. Cir. 1989)Google Scholar 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'd 972 F.2d 1429 (6th Cir. 1992)Google Scholar, rev'd 510 U.S. 569 1164 (1994)Google Scholar, 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)Google Scholar; Columbia Broadcasting Sys. v. Lowe's, Inc., 356 U.S. 43 (1958).Google Scholar The Sony case was decided by a 5—4 majority; see Sony, 464 U.S. 417; the Harper & Raw case was decided by a 6–3 majority, see Harper & Row, 471 U.S. 539.

9. Weinreb, , supra note 1, at 1138.Google Scholar

10. See, e.g., Gordon, Wendy J., Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessor, 82 Colum. L. Rev. 1600 (1982)CrossRefGoogle Scholar [hereinafter: Gordon, Fair Use] and Fisher, William F., Reconstructing the Fair Use Doctrine, 101 Harv. L. Rev. 1659 (1988) [hereinafter: Fisher].Google Scholar

11. See, e.g., Lacey, Linda J.. Of Bread and Roses and Copyrights, 1989 Duke L.J. 1532, 1584–93 (1989).CrossRefGoogle Scholar

12. Weinreb in his short comment on Leval, supra note 2, does not advance a full-fledged theory of fairness or anything akin to that. Although he deems fairness pertinent to the “fair use” problem he touts a case-by-case analysis and does not offer a specific test that can be applied to fair use determinations. See Weinreb, supra note 1. It is noteworthy that the approach Weinreb intimates and the view I lay out in this article vary dramatically.

13. See Fletcher, George F., Fairness and Utility in Tort Theory, 85 Harv. L. Rev. 537 (1972)CrossRefGoogle Scholar [hereinafter: Fletcher].

14. Id. at 548.

15. See Patry, , supra note 3, at 3.Google Scholar

16. See, e.g., Tonsow, v. Walker, 3 Swans. (App.) 672, 680 (1752)Google Scholar; also Mawan v. Tegg 2 Russ. (Ch.) 385, 390–91 (1826).Google Scholar

17. Wilkins, v. Aikin, 17 Ves. (Ch.) 422 (1810)Google Scholar; cited in Bramwell, v. Holcomb, 3My.& Cr. (Ch.) 737.738 (1836).Google Scholar

18. See, e.g., Cary, v. Kearsley, 4 Esp. 168, 170–71 (1803).Google Scholar

19. See, e.g., Roworth, v. Wilkes, 1 Camp. 94 (K.B. 1807)Google Scholar; also Patry, , supra note 3. at 11Google Scholar 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.

20. Dodsley, v. Kinnersley, Amb. 403, 405 (1761) (No. 212).Google Scholar (“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”).

21. Tonson, v. Walker, 3 Swans. (App.) 672, 680 (1752).Google Scholar (“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.…”)

22. 9 F. Cas. 342 (C.C.D. Mass. 1841) (No. 4,091).

23. Id. at 344–45.

24. Id.

25. See Patry, , supra note 3, at 23Google Scholar (“The error in modern 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 plaintiff's 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]).

26. 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.

27. 366 F.2d 303 (2d Cir. 1966) quoting Berlin v. E. C. Publications Inc., 329 F.2d 541,544 (2nd Cir. 1964).Google Scholar

28. 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. 1 sec. 8, cl. 8 (emphasis added).

29. See generally Gorman, Robert A. & Ginsburg, Jane C., Copyright for the Nineties, Cases and Materials, 551–54 (4th ed. 1993).Google Scholar

30. Weinreb, , supra note 1, at 1139 (footnotes omitted).Google Scholar

31. In its entirety, § 107 provides as follows:

Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(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.

32. See, e.g., Fisher, , supra note 10Google Scholar; Dratler, Jay Jr., Distilling the Witches' Brew of Fair Use in Copyright Law, 43 U. Miami L. Rev. 233 (1988)Google Scholar [hereinafter: Dratler]; also Weinreb, , supra note 1.Google Scholar

33. In Sony, Justice Stevens writing for the majority stated that every commercial use is to be presumed unfair. 464 U.S. at 451. A year later in Harper & Row Justice 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.

34. Campbell, 510 U.S. at 579.Google Scholar

35. Harper & Row, 471 U.S. at 562–63.Google ScholarSee also Fisher, , supra note 10, at 1679–82.Google Scholar

36. See Gordon, Wendy J., An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory, 41 Stan. L. Rev. 1343, 1372 (1989)CrossRefGoogle Scholar [hereinafter: Gordon, An Inquiry].

37. Posner, Richard A., The Problems of Jurisprudence 362 (1990).Google Scholar 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.

38. See Kant, Immanuel, Fundamental Principles of the Metaphysic of Morals 46Google Scholar (Abott, Thomas K. trans., 1949Google Scholar). For a discussion of this principle, see generally Murphy, Jeffrie G. & Coleman, Jules L., Philosophyof Law 77–81 (revised ed. 1990)Google Scholar [hereinafter Murphy and Coleman].

39. See generally, Goldstein, Paul, Copyright's Highway 165–196 (1994)Google Scholar [hereinafter: Goldstein, Copyright's Highway].

40. See, e.g., Levai, , supra note 2Google Scholar; Fisher, , supra note 10Google Scholar; and Gordon, , Fair Use, supra note 10.Google Scholar However, Jeremy Waldron observes that “[i]t 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.” Waldron, Jeremy, From Authors to Copiers: Individual Rights and Social Values in Intellectual Property, 68 Chi. - Kent L. Rev. 842, 851 (1993).Google Scholar

41. Weinreb, , supra note 1, at 1141.Google Scholar

42. Leval, , supra note 2, at 1111.Google Scholar

43. See, e.g., Time Inc. v. Bernard Geis Associates, 293 F. Supp. 130 (S.D.N.Y. 1968)Google Scholar, 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 Weinreb, , supra note 1, at 1143.Google Scholar

44. Gordon, , Fair Use, supra note 10, at 1601.Google Scholar

45. Id. at 1605–6.

46. Id. at 1607, 1616.

47. Id. at 1613.

48. Id. at 1614.

49. See, e.g., Buchanan, James M., Politics, Policy and the Pigovian Margins, 29 Economica 17, 19 (1962)CrossRefGoogle Scholar (“To argue that an existing order is ‘imperfect’ in comparison with an alternative order of affairs that turns out upon careful inspection to be unattainable may not be different from arguing that the existing order is perfect”); Coleman, Jules L.. Risks and Wrongs 87–102 (1992)Google Scholar [hereinafter Coleman: Risks and Wrongs]; Murphy, and Coleman, , supra note 38, at 228–29Google Scholar; Coleman, Jules L., The Foundations of Constitutional EconomicsGoogle Scholar, in Constitutional, Economics: Containing the Economic Powers of Government (McKenzie, Richard ed., 1984)Google Scholar; also White, Barbara, Coast and the Courts: Economics for the Common Man, 72 Iowa L. Rev. 577, 603–4 (1987)Google Scholar (“In fact a fundamental theorem of economics is that every society with a given amount of resources faces a multiplicity of economically efficient states from which to choose; the particular efficient state toward which society gravitates reflects that society's value”).

50. This applies with equal vigor to Fisher's account that will be discussed below; see text accompanying notes 75–82.

51. Gordon, , Fair Use, supra note 10, at 1627–35.Google Scholar

52. Id. at 1632–33.

53. Externalities are the effects of one's activities on others' activities and entitlements. For a more elaborate discussion of the problem of externalities see Cornes, Richard & Sandler, Todd, The Theory of Externalities, Public Goods and Club Goods 29–66 (1986)Google Scholar [hereinafter: Cornes and Sandler].

54. 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 Coleman, Jules & Ripstein, Arthur, Mischief and Misfortune (Annual Mcgill Lecture in Jurisprudencer and Public Policy), 41 McGlll L.J. 91 (1995)Google Scholar [hereinafter Coleman and Ripstein].

55. See, e.g., Cheung, Steven N. S., The Structure of a Contract and the Theory of a Non-Exclusive Resource, 13 J. L. & Econ. 49, 70 (1970)Google Scholar (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. Buchanan, James M. & Stubblebine, Wm. Craig, Externality, 29 Economic 371 (1962).Google Scholar

56. See, e.g., Dahlman, Carl J., The Problem of Externality, 22 J. L. & Econ. 141, 143 (1979)CrossRefGoogle Scholar (“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”).

57. Samuelson, Paul A. & Nordhaus, William, Economics 314 (14th ed. 1992).Google Scholar

58. Id. at 310–15.

59. Coase, Ronald H., The Problem of Social Cost, 3 J. L. & Econ. 1 (1960).CrossRefGoogle Scholar

60. See Sony, 464 U.S. at 479Google Scholar (Blackmun. J. dissenting).

61. Goldstein. Copyright's Highway, supra note 39, at 223–24Google Scholar; see also Goldstein, Paul, Copyright in the New Information Age, 40 Cath. U. L. R. 829, 829 (1991)Google Scholar [hereinafter: Goldstein, Copyright in the New Information Age].

62. 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 Sinacore-Guinn, David, Collective Administration of Copyright and Neighboring Rights (1993).Google Scholar

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.

64. See generally Merges, Robert P., Contracting into Liability Rules: Institutions Supporting Transaction in Intellectual Property Rights, 84 Cal L. Rev. 1293 (1996).CrossRefGoogle Scholar

65. 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.

66. See e.g., Goldstein, . Copyright's Highway, supra note 39, at 223–24Google Scholar; Dratler, , supra note 32, at 294Google Scholar (“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)Google Scholar, aff'd, 37 F.3d 881 (2d Cir. 1994).Google Scholar

67. Priest, George, What Economists Can Tell Lawyers about Intellectual PropertyGoogle Scholar, in 8 Research in Law and Economics: The Economics of Patents and Copyrights 21Google Scholar (Palmer, J. & Zerbe, R. eds., 1986).Google Scholar 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 copyrighted works is beyond the capability of economic theory or data to generate cost-benefit analyses.” Brennan, Timothy J., Copyright, Property and the Right to Deny, 68 Chl-Kent. L. Rev. 675, 704 n.101 (1993).Google Scholar

68. Landes, William M. & Posner, Richard A., An Economic Analysis of Cpyright Law, 18 J. Legal. Stud. 325, 341 (1989).CrossRefGoogle Scholar

69. For a normative discussion of the institutional aspects of law and economics, see Coleinan, Jules L., Efficiency, Utility and Wealth Maximization, 8 Hofstra L. Rev. 509, 549 (1980)Google Scholar (arguing that even if economic efficiency should be maximized it does not follow that courts and agents should act to this effect without “a further theory of institutional competence”).

70. Gordon, , Fair Use, supra note 10, at 1619 (footnotes omitted).Google Scholar

71. Indeed, Avery Katz concludes in a recent article that

Modern Neoclassical welfare economics never was suited to the task of constructing a normative order for law. A normative concept [of economic efficiency] rooted in positivism and not even regarded as decisive in the home field [i.e., economics] hardly could serve as an organizing concept for a separate discipline [i.e., law] that traditionally treated normative analysis as a central part of its task.

Katz, Avery Weiner, Positivism and the Separation of Law and Economics, 94 Mich. L. Rev. 2229, 2260–61 (1996).CrossRefGoogle Scholar

72. Harper & Row, 471 U.S.at 564Google Scholar: New Era Publications, 873 F.2d at 583Google Scholar; Salinger, 811 F.2d at 97 (2d. Cir.).Google Scholar

73. 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. Landes, William M., Copyright Protection of Letters, Diaries, and Other Unpublished Works: An Economic Approach, 21 J. Legal Stud. 79 (1992).CrossRefGoogle Scholar

74. 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 Bezanson, Rendall P., Soloski, John & Cranberg, Gilbert, Libel Law and the Press Myth and Reality 1–28 (1987).Google Scholar Alfred Yen maintains that these findings can be extended to authors whose works have been parodied or harshly reviewed. Yen, Alfred C., When Authors Won't Sell: Parody, Fair Use, and Efficiency in Copyright law, 62 U. Colo. L. Rev. 79, 105–6 (1991).Google Scholar

75. In many respects Fisher's test parallels a test offered by Louis Kaplow in the context of patents. See Kaplow, Louis, The Palent-Antitrust Intersection: A Reappraisal, 97 Harv. L. Rev. 1813 (1984).CrossRefGoogle Scholar

76. Fisher, , supra note 10, at 1707.Google Scholar

77. Id. at 1706.

78. 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 die “[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.

79. Id. at 1718.

80. 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. See Calabresi, Guido & Melamed, A. Douglas, Property Rules, Liability Rules and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089 (1972)CrossRefGoogle Scholar [hereinafter Calabresi and Melamed].

81. 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.

82. 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, , supra note 80Google Scholar; Posner, Richard A., Economic Analysis of law 57. 70 (4th ed. 1992).Google Scholar 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., Ayres, Ian & Talley, Eric, Solomonic Bargaining: Dividing a Lergal Entitlement to Facilitate Cosean Trade, 104 Yale L. J. 1027 (1995)CrossRefGoogle Scholar: also Kaplow, Louis & Shavell, Steven, Property Rules Versus Liability Rules: An Economic Analysis, 109 Harv. L. Rev. 713 (1996).CrossRefGoogle Scholar

83. Lacey, Linda J.. supra note 11, 1584–93 (1989).Google Scholar

84. Id. at 1587.

85. 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.

85. Bleistcin v. Donaldson Lithographic Co., 188 U.S. 239 (1903).Google Scholar

87. Lacey, . supra note 11. at 1588.Google Scholar

88. Id. at 1591.

89. Lomsky, Loren E., Rights without Stills, 12 Harv.J. L. & Pub. Poly 775, 777 (1989).Google ScholarSee also Lyons, David, Utility and Rights, 24 Nomos 107, 111 (1982).Google Scholar

90. Nozick, Robert, Anarchy, State and Utopia 30–31 (1974).Google Scholar

91. Dworkin, Ronald, Taking Rights Seriously xi (1977).Google Scholar

92. See Coleman, Jules L. & Krauss, Jody, Rethinking the Theory of Legal Rights, 95 Yale L. J. 1335, 1339 (1980).CrossRefGoogle Scholar

93. Lyons, , supra note 89, at 112.Google Scholar

94. The Second Circuit adopted this view in Iowa State Univ. Research Found., Inc. v. American Broadcasting Cos., Inc., 621 F.2d 57,61 (1980)Google Scholar (“the fair use doctrine is not a license for a corporate theft, empowering a court to ignore a copyright whenever it determines the underlying work contains material of possible public importance”).

95. 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. See generally Coleman, and Ripstein, , supra note 54, at 91.Google Scholar

96. Aristotle, , the Nichomachean Ethics, book V. 293–302Google Scholar (Ross, W.D. trans., 1925).Google Scholar

97. As Coleman points out, only seldom do the losses of victim and the gain of the injurers overlap. Coleman, Jules L., Markets, Morals and the Law 186–87 (1988).Google Scholar

98. Coleman, , Risks, and Wrongs, , supra note 49, at 352.Google Scholar

99. Id.

100. Coleman, Jules L., Intellectual Property and Corrective Justice, 78 Va. L. Rev. 283, 287 (1992)CrossRefGoogle Scholar [hereinafter Coleman, Intellectual Property].

101. id.

102. Coleman, , Risks, and Wrongs, , supra note 49, at 329–332Google Scholar. See also Coleman, Jules L., Tort Liability and the Limits of Corrective Justice, in In Harm's Way 139, 141Google Scholar (Coleman, Jules L. & Buchanan, Allen eds., 1994)Google Scholar [hereinafter: Coleman, Tort Liability].

103. Coleman, Risks and Wrongs, id. at 331.

104. Id. Set also Coleman, , Tort Liability, supra note 102, at 141.Google Scholar

105. The classic case of private necessity is Vincent v. Lake Erie Transportation Co., 109 Minn. 456, 124 N.W. 221 (1910)Google Scholar. In this case the defendant left his ship moored at the plaintiff's dock during a two-day 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 plaintiff's deck was reasonable under the circumstances, but nevertheless it granted compensation to the plaintiff because the defendant availed himself of the plaintiff property. But see Ploof v. Puntam, 81 Vt. 471, 71 A. 188 (1908)Google Scholar (a dock owner whose servant unmoored the plaintiffs ship during a storm was held liable for the damage that was caused to the ship and its passengers).

106. Coleman, , Risks, and Wrongs, , supra note 49, at 340–41Google Scholar. See also Feinberg, Joel, Voluntary Euthanasia and the Right to Life, 7 Phil Pub. Aff. 93, 102 (1978).Google ScholarPubMed

107. Folsom, , supra, 9 F. Cas. 342, 348 (C.C.D. Mass. 1841) (No. 4,901)Google Scholar citing Bramwell v. Halcomb 3 My. & Cr. (Ch.) 737 (1836).Google Scholar

108. See, e.g., Eastbrook, Frank H., Intellectual Property Is Still Property, 13 Harv. J. L. & Pub. Poly 108, 118Google Scholar (“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, or Gordon, , An Inquiry, supra note 30.Google Scholar

109. It is a longstanding principle of American constitutional law that taking of private property cannot sene private ends. See Calder v. Bull 3 U.S. (3 Dall.) 368, 388 (1798)Google Scholar (seriatim opinion); also Tribe, Laurence H., American Constitutional. Law § 9–2 at 457–58 (1978).Google Scholar

110. On the relation between corrective justice and tort law, see generally Coleman, , Risks, and Wrongs, , supra note 49, at 361–429Google Scholar, and Coleman, , Tort Liability, supra note 102Google Scholar. Epstein, Richard A.. Property and Necessity, 13 Harv.J. L. & Pub. Poly 2 (1990).Google Scholar

111. 2 Russ (Ch.) 385, 390–91 (1826).

112. Fletcher, , supra note 13.Google Scholar

113. Id. at 551. Excuses are highly irrelevant to copyright infringement cases.

114. Coleman, , Risks, and Wrongs, , supra note 49, at 358.Google Scholar

115. Id. at 358–59; Fisher, , supra note 10, at 1681Google Scholar n.100 and the sources cited therein.

116. Coleman, id. at 359–60. see also Epstein, Richard A., International News Service v. Associated Press: Custom and Law as Sources of Property Rights in News, 78 Va. L. Rev. 85, 86 (1992)CrossRefGoogle Scholar [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”).

117. 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”).

118. 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.” Chafee, Zechariah, Reflections on the Law of Copyright, 45 Colum. L. Rev. 503, 511 (1945).CrossRefGoogle Scholar

119. 17 U.S.C. § 102(b) (1994) (“[i]n no case does copyright protection for an 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. Selden, 101 U.S. 99 (1879)Google Scholar. See also Goldstein, , Copyright: Principles, supra note 5, § 2.3 at 2:23.Google Scholar

120. 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)Google Scholar; Morrisey v. Procter & Gamble Co., 379 F.2d 675 (1st Cir. 1967).Google Scholar

121. See Ellickson, , supra note 1, at 260Google Scholar. But see Princeton University Press v. Michigan Document Service Inc., 99 F. 3d 1381 (6th Cir. 1996)Google Scholar (en banc) 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).Google Scholar

122. Campbell, 510 U.S. at 58–1.Google Scholar

123. See, e.g., Harper & Row, 471 U.S. at 564Google Scholar (“[t]he law generally recognizes a greater need to disseminate factual works than works of fantasy or fiction”); also Patry, , supra note 3, at 504–7.Google Scholar

124. See, e.g., Leval, , supra note 2, at 1116Google Scholar (“The nature of the copyrighted work is a factor that has been only superficially discussed and little understood”), and Patry, id. at 505.

125. The respondents chose to start a copyright infringement suit against Sony, which merely manufactured the equipment that could have been used in violation of their rights, but not against Sony's customers, who performed the actual copying. Because Sony itself did not reproduce the protected works, the respondents could only sue Sony for a contributory infringement.

126. Sony, 464 U.S.at 451.Google Scholar

127. Id. at 478–82 (Blackmun. J. dissenting).

128. Id. at 489.

129. Goldstein, , Copyright's Highway, supra note 39, at 158.Google Scholar

130. 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 maybe 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—hasa “powerful symbolic effect for copyright owners.” Id. at 163.

131. For a more detailed description see 17 U.S.C. §§ 1003–1007 (190–1).

132. Harper & Row, 471 U.S. at 550Google Scholar (citing Latman, A., Fair Use of Copyrighted Works 15 (1958)).Google Scholar

133. Id. at 593.

134. For another example of resort to industry practices see Triangle Publications v. Knight-Ridder Newspapers, 626 F.2d 1171 (5th Cir. 1980)Google Scholar. But see Fisher, , supra note 10, at 1680Google Scholar (arguing that if courts ought to look beyond positive law they will not be able to identify the relevant conventions and standards); and Leval, , supra note 2, at 1126Google Scholar (arguing that there is no justification for considering morality as part of the fair use inquiry).

135. Epstein, , Custom and Law, supra note 116, at 97.Google Scholar

136. Goldstein, , Copyright in the New Information Age, supra note 61, at 1.Google Scholar

137. To qualify for copyright protection an expression must be fixed in a tangible medium of expression. According to § 101 of the Copyright Act, this requirement is satisfied when the embodiment of the expression is sufficiently permanent to permit the expression to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. While it is clear that saving a work in the memory of a computer is fixation for purposes of copyright protection, Stern Elec. Inc. v. Kaufman, 669 F.2d 852,855 (2d cir. 1982)Google Scholar, it is still uncertain whether brief fixation in a computer's random access memory (RAM) satisfies the statutory requirement.

138. See, e.g., O'Rourke, Maureen, Propriety Rights in Digital Data, 41 Fed. Bar. News & J. 511, 514 (1994)Google Scholar. More specifically, such uses may violate the author's exclusive right to prepare derivative works based on the original copyrighted work. Gotts, llene Knablc & Rutenberg, Alan D., Navigating the Global Information Superhighway: A Bumpy Road Lies Ahead, 8 Hary.J. L.&Tech. 275, 318(1995).Google Scholar