by Robert H. Reynolds

I. INTRODUCTION

“[T]he capacity of an Artificial Intelligence to follow a program, even if that program contains a tremendously elaborate and complex system of rules, is not sufficient to enable the system to make judgments and exercise discretion.” [1]

Sixty two million people were using Napster after such use was deemed an infringement without exception under the fair use doctrine. [2] Now that over twelve million people more than the number who voted for our current President are committing “illegal” activity, perhaps the American public will finally concern itself with how Congress and courts have weighed its constitutional interest in the delicate copyright balance.

In the Ninth Circuit’s opinion, Judge Beezer held that those who use Napster (when it was illegal) – even for the purposes of sampling and time-shifting, and even if they are buying more music than previous to when they used this service [3] – are not engaging in a fair use largely because “Napster users get for free something they would ordinary have to buy.” [4]

Part II of this Note contends that emphasizing this consideration, central to the first and fourth prongs of a fair use analysis, is both circular and harmful. [5] All fair users of a work would “ordinarily have to buy” that work by obtaining a license. The purpose of fair use is to remove a given use from the author’s right of control or compensation. These increasingly common circular determinations on harm to the copyright owner’s market effectively preclude all fair uses when another’s copyright is involved and licensing is potentially available. [6]

Fair use is examined in Part III of this Note as properly applied to ensure that the interests of public access based in the First Amendment and Copyright clause are adequately evaluated in the copyright balance. Within this balance, this Note argues, the creator’s interests are a secondary consideration. This section also reveals the development of fair use from a recognition of the courts’ equitable power to weigh interests, to a restrictive statutory analysis, to a single-issue factual determination.

Part IV of this Note explains why Congress will not likely prevent this erosion of the public interest, but nevertheless suggests that Congress may best solve this problem by eliminating the factors under section 107. With or without congressional encouragement, however, this Note concludes by recommending that courts recognize the danger in focusing upon licensing, and properly “take back” their judicial power of equitable balancing to ensure that the primary interest of unrestricted public access is upheld insofar as creators retain adequate compensation.

II. “FARE USE” LICENSING INQUIRY

As technological innovation in forms such as photocopying and the Internet increases the public’s ability to access works [7] , the balance between public access and copyright restriction often requires re-calibration. Unlike Sony Corp. v. Universal City Studios, Inc. [8] , courts in decisions such as Napster [9] , MP3.com [10] , Princeton University Press [11] , and American Geophysical [12] have seemingly neglected their responsibility to properly conduct an equitable balance. Perhaps in fear of altering existing business models, or perhaps mistakenly boxed into a mechanized analysis prompted by the nature of conservative judicial precedent, courts are robotically implementing an apparently objective analysis with deleterious effects.

A. Danger of Circularity

Twenty-six years ago, the Supreme Court in Williams & Wilkins noted that in determining whether a use is “‘unfair,’ one cannot assume at the start . . . that plaintiff had the right to [a] license [fee]. That conclusion results only if it is first determined that the photocopying is ‘unfair.'” [13] More recently, Judges [14] and scholars such as Nimmer have concurred that “[a] danger of circularity is posed here – a potential market, no matter how unlikely, has always been supplanted in every fair use case, to the extent that the defendant, by definition, has made some actual use of plaintiff’s work, which use could in turn be defined as the relevant potential market.” [15]

This dangerous circularity interprets fair use out of existence. In Harper & Row Publishers, Inc. v. Nation Enters., the Supreme Court defined fair use as “a privilege in others rather than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent.” [16] If fair use is a privilege to use without consent, denying fair use where consent is possible (by license) renders this doctrine impotent. In addition, the Supreme Court has repeatedly noted that fair use is an affirmative defense. [17] This circular determination leaves parties accused of infringement unable to raise their defense merely by virtue of it being a defense, as litigation itself will not ensue when permission by license or otherwise is granted.

Congressional definitions of “noncommercial” do not implement this circularity. The Audio Home Recording Act (“AHRA”), for example, provides statutory exemptions for consumers who copy musical recordings for noncommercial use. [18] These circular interpretations of American Geophysical and its progeny render “unlicensed noncommercial use” an oxymoron.

Nimmer correctly observed the danger in a “fare use” analysis. By many accounts, the Clinton administration report on the National Information Infrastructure implies that “most, if not all, fair use applications can be eliminated by licensing.” [19] Indeed, when licensing schemes make a use less fair, publishers can lessen the scope of the fair use exception simply by setting up systems to collect fees for otherwise-protected activities, including the copying involved in creating a parody or quoting part of a work in a review. [20]

Yet, fair use may not be eliminated. As Chief Judge Martin explains, “while it may seem unjust that publishers must share, in certain situations, their work-product with others, free of charge, that is not some ‘unforeseen byproduct of a statutory scheme;’ rather, it is the ‘essence of copyright’ and a ‘constitutional requirement.” [21]

This circular interpretation of fair use suggests that the First Amendment is “not offended by the requirement that the user first bargain for that right with the source of the value,” but scholars expressly affirm that no evidence suggests that First Amendment jurisprudence has ever accepted this view. [22] That creators of a given work would prefer a license has never foreclosed a fair user’s freedom from control or payment.

Fair use doctrine is not excessive verbiage or outdated policy. The Supreme Court repeatedly affirms that “[f]rom the infancy of copyright protection, some opportunity for the fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose.” [23] Like the Due Process clause of the Fourteenth Amendment, it is a vital anchor for constitutional rights and must not be eliminated by licensing or any other judicial sleight-of-hand.

B. Market Failure Theory

This disturbing trend in fair use analyses may have been inspired by the Market Failure Theory, best advanced in Wendy Gordon’s 1982 law review article. [24] Market Failure Theory proposes that fair uses should be granted only where the market fails to provide for a socially beneficial transfer. Fair uses, this theory contends, are uses that would have been authorized by the copyright owner except for the fact that transaction costs make it too costly to seek and obtain permission for copying. Courts including American Geophysical, Princeton, MP3.com, and now Napster have seemingly adopted this encapsulation of the fair use inquiry. [25]

Yet this conception is far too restrictive. First, the Copyright Act makes no mention of market failure. Second, the fair use doctrine clearly reflects policy objectives beyond the mere prevention of market failure. Market Failure Theory would allow an owner to profit from and occupy her criticism and parody market – and therefore be immune from criticism – simply by permitting licensing. Even if granting the author the right to control the market for criticism provided the author with a greater incentive to create, such permission would decrease the value of the resulting work to the public and the overall access to works vital to our First Amendment interests (as discussed below). [26] Fair use cannot be so constrained.

Part III demonstrates that a “pay per use” world which does not provide for unlicensed fair uses is a dystopia, blind to the interests behind copyright and heedless of unimpeded public access as the appropriate primary consideration.

III. EQUITABLE BALANCE AND THE SECONDARY CONSIDERATION

As a Judge who had been dealt many precedent-setting copyright suits involving claims of fair use, Judge Leval now admits that his “own decisions had not adhered to a consistent theory, and, more importantly, that throughout the development of the fair use doctrine, courts had failed to fashion a set of governing principles or values.” [27] “Judges do not share a consensus on the meaning of fair use,” he explained, and “[d]ecisions are not governed by consistent principles.” [28]

Despite the lack of consensus, fair use is founded upon well-established constitutional principles. The balance used to attain these principles, however, weighs seemingly contradictory interests. For this reason, the policy behind the fair use doctrine and the appropriate weight to be given to the opposing factors in the copyright balance must be properly understood.

A. Statutory Recognition Caused Judges to Forget Their Equitable Power

Fair use is often referred to as an “equitable rule of reason.” [29] In the Sony decision, for example, the Court quoted this definition of fair use on five occasions. [30] Historically, fair use was a common law doctrine which gave courts the power to equitably preserve unrestricted public access for certain uses without “excessively diminishing” the incentive to create. [31] In the legislative history of the Copyright Act, Congress noted that its intention in incorporating the fair use doctrine into section 107 was to preserve this common law doctrine and not to “change, narrow or enlarge it in any way.” [32]

The Supreme Court has also repeatedly noted that the section 107 factors “are not meant to be exclusive,” and that no standard definition of fair use is possible. [33] In Campbell, the Court further affirms that “[t]he task is not to be simplified with bright-line rules” but that the fair use statute “calls for case-by-case analysis” in which the factors are not considered separately but “weighed together, in light of the purposes of copyright.” [34]

Despite the clear intentions only to preserve the courts’ historic power to equitably weigh public access against the necessary incentive to create, enunciating the fair use doctrine in statute has ironically resulted in stifling the same power and flexibility that it was designed to protect. As one scholar observed:

[t]here is a natural tendency to treat statutory language as carved in stone, as rigid rules rather than broad guidelines. Despite Congress’s desire that the courts continue to chart their own development of fair use, the very presence of the statutory provision has inhibited many from doing so. Rather than looking at the plain language of section 107 in its entirety in light of its purpose as a confirmation of judge-made law, courts have isolated and overemphasized individual words and phrases, taking as limitations on their power language intended as guidance. [35]

Expressing support for the flexible, discretionary fair use doctrine in statute has unfortunately resulted in “mechanistic, formulaic decisions.” [36] In contrast to making determinations like an Artificial Intelligence described in the Introductory quote, following a complex system of rules but not necessarily exercising equitable discretion, judges should assume their discretionary power and properly employ fair use as an “equitable rule of reason.”

B. Overemphasis and Improper Use of the Market Effect

At the heart of these perfunctory determinations, courts are resorting to simplistic judgments which turn on a characterization of the use as either commercial or not. “In the process,” as one scholar notes, “they have adopted a series of presumptions and rules of thumb – a method of analysis antithetical to the very nature of fair use.” [37]

This “commercial” consideration is employed by courts under both the first and fourth prongs of section 107 analysis, and for some time, the consideration was given substantial weight. In 1985, the Supreme Court in Harper & Row stated that the commercial effect consideration in the fourth prong “is undoubtedly the single most important element of fair use.” [38]

Six years later, however, a case involving a constraint of speech that particularly implicated First Amendment values caused the Supreme Court to rethink its emphasis. Rather than focusing upon commercial use, the Court in Campbell directed later courts to instead focus upon whether the use benefits the public. [39]

The problem with over-reliance on the commercial use indicator, the Supreme Court explained, is that a work’s effect upon the market is not relevant if a work is fair. Indeed, “when a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act.” [40] This harm is not cognizable because of the public’s interest involved. Despite the Supreme Court’s express retreat from undue emphasis upon this consideration, courts in decisions li ke Napster still cite to Harper & Row and seemingly continue to misplace their focus upon the commercial effect. [41]

In short, when a use is deemed “fair” because of its public benefits, there is no recognizable commercial harm. Supreme Court precedent is clear, though often unheeded: that a license may have been available and was neglected – even if it does kill demand for the original – is not relevant to whether a use is fair or such a license is necessary at all.

C. The Purpose of Copyright is To Promote Public Learning, Fundamental to First Amendment Interests and Represented By the Fair Use Doctrine

1. Public Learning

The ultimate purpose of copyright is not to preserve an artist’s income but to promote public learning. The first U.S. Copyright Act (the Statute of Anne, enacted by Parliament in 1710) was entitled “An Act for the Encouragement of Learning.” [42] With respect to the constitutional mandate “To Promote Progress of Science and the Useful Arts,” scholars note that the term “‘Science’ should be construed according to its eighteenth-century usage of learning’ so that the purpose of copyright is to “encourage learning.” [43]

Although copyright originated in England as a means of government censorship by creating a publishing monopoly, the Statute of Anne was defined as an “anti-censorship trade regulation statute” which refocused legal rules on the goal of encouraging public learning. As L. Ray Patterson explains,

The justification for this regulatory scheme, and the master stroke, was that the statute’s purpose was not to protect the property of either publisher or authors, but to promote learning . . . The statute primarily served the public interest . . . by limiting the rights of the copyright owner to rights that were economic in nature, it gave the user freedom to use the work for the purpose of learning . . . . The English experience with the Statute of Anne indicates that publishers were omitted for good reason. [44]

The framers of the U.S. Constitution are believed to have excluded publishers from the Copyright clause for the same reasons. [45]

This copyright bedrock is elucidated by Judge Merritt in his Princeton University dissent: “The public has the right to make fair use of a copyrighted work and to exercise that right without requesting permission from, or paying any fee to, the copyright holder”; indeed, “[t]he essence of copyright is the promotion of learning, not the enrichment of publishers.” [46]

2. The First Amendment and Fair Use Doctrine

The First Amendment enjoys a significant place in American jurispru dence. In some of this country’s most highly publicized cases, like Cohen v. California [47] , or Hustler Magazine, Inc. v. Falwell [48] , the right to use a given expression that one deems best expresses herself has often been deemed to outweigh other important interests. In cases like New York Times Co. v. Sullivan, the Supreme Court affirms that the First Amendment may be characterized as the privilege to injure market value. [49]

In the copyright arena, First Amendment defenses – also alleging a privilege to injure market value – are consistently rejected on the grounds that free speech interests are protected by the fair use doctrine. [50] Yet, when courts situate the First Amendment under the category of fair use they repeatedly neglect giving it the attention that it has always merited. Both legislatures and judiciaries must recognize that any diminution of the fair use doctrine necessarily diminishes America’s most valued constitutional rights.

Professor Lessig expands upon this incongruity in his rhetorical question, “why is it so easy to invoke the power of the state to protect Hollywood, yet so difficult to wield the power of the state to protect kids?” [51] Courts are always very careful when they consider how legislation on kid’s access to porn might impose a burden upon the rights of Net surfers, and have tried to guarantee the potential for innovation and free speech. As a result, no law that proposes to regulate kids’ access to porn has withstood judicial review. In stark contrast, with copyright legislation (affecting the right of fair use, as with the right of adults to access erotic material) courts are “racing to enjoin alleged violators of copyright law, often without any trial at all, taking no account of the effects on the development of the internet generally.” [52] In both instances, First Amendment rights are implicated. For some reason, courts easily note that the regulation of porn raises a question of free speech, yet they fail to see that the regulation of copyright raises the same important constitutional rights.

Having learned from the trial and error of the English copyright system, to avoid the traps of censorship and repressed expression, the constitutional incentive to create has never been an infinite, all-encompassing monopoly. [53] Instead, the fair use doctrine recognizes the judiciary’s right and obligation to balance interests in order to protect the public’s First Amendment rights without unduly restricting the necessary incentive to create. [54]

In one of the rare cases where fair use is found outside the context of parody or criticism, Sony v. Universal City Studios [55] , the Supreme Court held that use of a video recorder to time-shift viewing of television programs was a fair use, even though the Court noted several surveys which demonstrated that a substantial number of Betamax users did not simply view the recorded program once and erase or record over it, but instead accumulated tapes to create personal libraries – much like the Napster court’s concern with “sampling.” [56] Perhaps most noteworthy, the Court held that this use of unauthorized copying was permitted because it “increas[ed] access to television programming,” furthering the First Amendment’s goal of disseminating information to the fullest extent. [57] Like the Court’s First Amendment decision in New York Times [58] , fair use gave certain uses the privilege to injure plaintiff’s commercial market because the public benefit was granted supremacy.

Examples of the First Amendment rights being situated in the fair use doctrine, then written out of existence by a circular, mechanical test may have originated with Harper & Row. [59] In Harper & Row, there was no indication in the Court’s opinion that the challenged use caused any diminution in sales of President Ford’s memoirs, but the Court nevertheless found harm to the market for licensing of excerpts. [60] Under ordinary circumstances, as one scholar explains, this kind of report would lay easy claim to First Amendment protection because it involves material at the “heart” of free speech – the examination of public officials acting in their public capacities. [61] Moreover, the value of the memoirs was hurt more by the lifting of information from the book (unprotectable under the idea-expression dichotomy or “merger” doctrine) than by the 300 or 400 words that the article quoted.

Sixteen years after Harper & Row, disrespect for the fair use doctrine still contrasts with an ever-expanding, robust First Amendment jurisprudence. Because the fair use doctrine is the embodiment of one of America’s most valued rights, its erosion must not be so easily dismissed.

D. Appropriate Weight: The Copyright Owner is a Secondary Consideration

At least as important as recognizing the need to equitably balance the overarching interests, courts must understand the weight to be given to each side of the copyright scale. In recent fair use cases, courts have improperly focused on the availability of profits via licensing on the incentive side of the scale. Nevertheless, Supreme Court precedent is clear: the copyright owner’s interest is a secondary consideration to the ultimate aim of public access.

The Supreme Court in Feist Publications, Inc. v. Rural Tel. Servs Co. affirms that the “primary objective of copyright is not to reward the labor of authors, but ‘To promote the Progress of Science and useful Arts.” [62] The foundation for copyright reveals that Congress, on the public’s behalf, may give artists limited rights, for limited times to a limited sphere of creative works. Contrary to the apparent belief of some courts, the plain meaning of the Copyright clause reveals that artists do not “give” the public certain fair use rights because such rights are not in their possession. Outside of the congressional grant on behalf of the public, artists have no rights to creative works, and the rights given to artists are expressly constricted so as not to include ideas, infinite terms, currently, fashion and recipes, and – most relevant to this Note – the right to control or collect a fee from fair users.

With this perspective, Judge Leval explains, the proper question is not whether an author will lose money through licensing – because this can always be the case – but whether a given use “serves the copyright objective of stimulating productive thought and public instruction without excessively diminishing the incentives for creativity.” [63]

On numerous occasions, the Supreme Court [64] likewise affirms that the balance is not equally weighed, but instead the ultimate aim and primary objective of copyright lies in public access. In Twentieth Century Music Corp. v. Aiken, the Court held that “[c]reative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts . . . [T]he ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. [65] In Fox Film Corp. v. Doyal, the Supreme Court affirmed that the primary objectives behind copyright “lie in the general benefits derived by the public.” [66] In Fogerty v. Fantasy, Inc., the Court held that “copyright law ultimately serves the purpose of enriching the general public through access to creative works.” [67] In United States v. Paramount Pictures, the Court explained that the reward to an author is a “secondary consideration” in copyright law. [68]

Authorities of the utmost esteem concur: the ultimate aim and purpose, and the primary objective and consideration in the copyright balance is public access.

E. Access to Creative Works is a Vital Public Interest

“A tightly controlled artistic culture can be the handservant to tyranny.”

– Professor Marci Hamilton [69]

Public access to artistic expression has always been imperative. History is replete with examples where creative works have “threatened entrenched power structures and in so doing secured a measure of freedom.” [70] In addition, creative works often have meaningful political implications even when they do not appear or even seek to convey an explicit ideological message. Literature and art may be subtle, but powerful, vehicles for attitude change or reinforcement. Even what may seem to be abstract, ‘pure’ artistic expression may challenge accepted modes of thought and belie the efforts of govern ments or cultural majorities to standardize individual sensitivities and perceptions. [71]

It is for this reason that totalitarian regimes have prohibited styles of art and music that appear politically benign. [72]

While copyright provides an incentive to create works which can greatly benefit society, if drawn too broadly, like a totalitarian regime, copyright can also constrain access and unnecessarily burden transformative uses of existing works, thereby impeding public education. [73] In contrast, wide access to creative works facilitates education and can help “foster an appreciation for diversity and a sense that elite cultural and social values may be confronted and contested.” [74]

Professor Yochai Benkler contends that this valued diversity of creative works is decreased by licensing everything. In his analysis, Benkler disputes the prediction that increases in copyright protection will lead to greater diversity of content. [75] Benkler argues that increased protection and decreased fair use will likely lead, “over time, to concentration of a greater portion of the information production function in society in the hands of large commercial organizations that vertically integrate new production with owned-information inventory management.” [76]

An emphasis upon licensing potential is also deleterious because individuals who are not part of the large commercial organizations also decrease the overall amount and diversity of works produced when they are forced to implement licensed uses, as opposed to free, fair use. For example, to the extent that a tenured professor considers writing a new book, she currently faces very few constraints on her choices. If she were compelled to adopt a market focus, however, she would have to forgo writing a text solely for her immediate discipline or one likely to attract only a very small audience. [77]

In the words of Professor Benkler,

commercialization, and the increase of input costs can cause the loss of many works and of the productive efforts of many individuals and organizations. Projects may be aban-doned because the cost of the inputs necessary to pursue them is too high after the enclosure, or because previously noncommercial distribution channels, like university presses, have turned commercial. Individuals and organizations may cease to produce information on an amateur or noncommercial basis because they can no longer afford to produce in a more completely appropriated environment. In all these cases, diversity is reduced not only in number, but also in the range of motivations driving those who put fingers to keyboard to compose. [78]

Judge Leval wrote that in the fall-out of one of his decisions, the defendant biographer rewrote his book without quotations and instead resorted to adjectives. Now confessing to error in his decision, Leval regrettably explains:

If a newspaper wishes to report that last year a political candidate wrote a personal letter demeaning a race or religion, or proclaiming ideals directly contrary to those now stated in his campaign speeches, how can it fairly do this without quotation from the letter? If a biographer wished to show that her subject was cruel, jealous, vain, or crazy, can we seriously contend that she should be limited to giving the reader those adjectives, while withholding the words which support the conclusion? How then may the reader judge whether to accept the biographer’s characterization? . . . . Does this battle of adjectives serve knowledge and the progress of arts better than allowing readers to judge for themselves by reading revelatory extracts? [79]

As illustrated by this anecdote, access to ideas as opposed to expression will often not suffice.

Of all the problems with a fair use licensing paradigm, perhaps the most troubling is the potential control over one’s criticism that this perspective allows. “A historian who wishes to quote personal papers of deceased public figures now must satisfy heirs and executors for [seventy-five] years after the subject’s death,” explained Judge Leval. [80] “When writers ask permission, the answer will be, ‘Show me what you write. Then we’ll take about permission.’ If the manuscript does not exude pure admiration, permission will be denied.” [81] Market Failure Theory and circular licensing inquiries in a fair use context permit this same activity that the First Amendment cannot tolerate.

IV. CONCLUSION

This Note seeks primarily to demonstrate a significant problem with copyright doctrine as frequently interpreted. Unfortunately, enacting a solution is (like always) far more complicated. Congress and the Copyright office have not characteristically supported the public’s interest in access for fair uses. Given America’s currently permissible campaign financing, lobbying has a terrible effect upon the copyright balance. Several years ago, Professor Patry noted, “we have, I believe, reached a point where legislative history must be ignored because not even the hands of congressional staff have touched committee reports.” [82]

Turning to business lobbyists to draft legislation makes sense to the majority whip Tom DeLay, because (in his words) “they have the expertise”; yet, of course this lobbyist “expertise” consists of nothing more than taking care of their clients. [83] In fact, scholars agree that “copyright legislation usually has been enacted in response to interest group pressures rather than as a product of coherent philosophy.” [84] The recently enacted Digital Millennium Copyright Act illustrates this industry capture, wherein one side of the debate for fair use comprised of only libraries and nonprofit institutions, while the other side held the wealthiest industries in America. It is no wonder that fair use was entirely ignored by this legislation.

Professor Jessica Litman has explained that the Copyright Office likewise has a “history of being ‘captured’ by industry” because of “limited budgets, revolving doors, and the growing perception that copyright owners were in fact the Office’s real constituency.” [85] In fact, its very existence is at the whim of Congress.

Since the widespread media coverage surrounding the Napster [86] decision, however, the American public may finally recognize their traditional rights of access and reproduction for given uses, including criticism, parody, and perhaps even online music sampling or space-shifting. If anything, perhaps a strong public response will better ensure that the public is not so consistently left out of the copyright calculus – a calculus wherein the public’s interest ought to be the primary consideration.

I suggest that the best means to prompt courts into moving in the right direction is to focus this renewed support for fair use into lobbying Congress to eliminate the section 107 fair use factors. With this direction, courts may better recognize the original purpose for and policies behind fair use. While some courts may continue to gravitate toward mechanical analyses, perhaps the majority may be less hesitant to employ the “equitable rule of reason” with a focus upon unrestricted public access as the primary consideration.

In the end, given the American public’s short attention span and the improbability of Congress voting for any meaningful campaign finance reform, congressional inaction may continue to run its course. With or without congressional encouragement, however, reproduction and distribution is being vastly facilitated by photocopy machines, digitization, and the Internet, and the copyright balance increasingly requires deliberate recalibration. Faced with new uses in new contexts, courts must recognize their historic power to equitably balance constitutional interests and form context-dependant decisions. More than at any time in recent history, perhaps, the judiciary must understand the First Amendment’s interests behind and within copyright and thereby properly conduct fair use analyses whenever good faith claims are raised.

[1] Lawrence Solum, Legal Personhood for Artificial Intelligences, 70 N. Carol. L. R. 1231, 1248 (April 1992).

[2] Statement of Orrin G. Hatch (R-UT) on the Ninth Circuit Decision in the Napster case (Feb. 14, 2001), at

[3] Similar to Napster’s Fader Report findings, in July 20, 2000, Jupiter Communications reported that users of networked music-sharing technologies are 45% more likely to have increased their overall music purchasing than non-users. In addition, a recent study of file-sharing's effects on music sales says online music trading appears to have had little part in the recent slide in CD sales. Researchers at Harvard and the University of North Carolina tracked music downloads over 17 weeks in 2002, matching data on file transfers with actual market performance of the songs and albums being downloaded. Study at http://www.unc.edu/~cigar/papers/FileSharing_March2004.pdf.

[4] A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1015 (9th 2001).

[5] This Note does not contend that Napster is or should be legal. Napster does, however, serve as a recent example of the increasing mechanistic determinations that courts are making in an area of the law where constitutional interests are at stake and must be properly weighed.

[6] The Supreme Court in Campbell v. Acuff-Rose affirms that commercial harm is not cognizable under the Copyright Act if the use is fair. 510 U.S. 569, 575 (1994). For this reason, commercial harm should be irrelevant to a fair use analysis. Nevertheless, this Note contends that even if effect on a potential licensing market were appropriate, such a consideration should be far from determinative in a fair use analysis. New markets are relevant only as they are included in the entire package of incentives, balanced as a secondary consideration with the foremost goal of public access.

[7] Where courts hold that the mere act of viewing a work on a computer screen constitutes copying, access includes reproduction. See, e.g. Jessica Litman, The Exclusive Right to Read, 13 Cardozo Arts & Ent. L.J. 29, 40 (1994).

[8] 464 U.S. 417 (1984).

[9] Napster, supra note 4.

[10] UMG Recordings, Inc. v. MP3.com, Inc., 92 F.Supp.2d 349 (S.D.N.Y. May 4, 2000) (holding that “space shifting,” wherein subscribers can enjoy sound recordings contained on CDs that they own over the internet was held not fair use).

[11] Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996), cert. denied, 117 S.Ct. 1336 (1997).

[12] American Geophysical Union v. Texaco, 60 F.3d 913, 937 (2d Cir. 1994).

[13] 487 F.2d 1345, 1357 (Ct. Cl. 1973), aff’d, 420 U.S. 376 (1975).

[14] Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996) (Merritt, J., dissenting), cert. denied, 117 S.Ct. 1336 (1997) (“If the publishers have no right to the fee in many of the instances in which they are collecting it, we should not invalidate that practice by now using the income derived from it to justify further imposition of fees.”); American Geophysical Union v. Texaco, 60 F.3d 913, 937 (2d Cir. 1994) (Jacobs, J., dissenting) (“There is a circularity to the problem . . .”).

[15] Nimmer on Copyright, § 13.05[A][4] at 13?182 (1999).

[16] 471 U.S. 539, 549 (1985) (citations omitted). This decision may also be responsible for circularity, given the discussion about avoiding payment of the “customary fee.”

[17] See, e.g., id. at 561; Campbell v. Acuff-Rose Music, 510 U.S. 569, 590 (1994).

[18] 17 U.S.C. § 1008 (1994).

[19] James v. Mahon, A Commentary on Proposals for Copyright Protection on the National Information Infrastructure: An Analysis of Proposed Copyright Changes and Their Impact on Copyright's Public Benefits, 22 Rutgers Computer & Tech L.J. 233, 258 (1996).

[20] American Geophysical, supra note 14 at 938.

[21] Princeton University Press, supra note 11 at 1393 (Martin, J., dissenting) (emphasis added), quoting Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349 (1991).

[22] Diane Zimmerman, Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 Wm. & Mary L. Rev. 665, 722 (Spring 1992).

[23] Campbell v. Acuff-Rose Music, Inc., supra note 17 at 575.

[24] Wendy Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors, 82 Columb. L. Rev. 1600 (1982) (In a private conversation on April 2, 2001 at Cardozo Law School, Professor Gordon stated that most commentators and courts that cite her article have overly constrained her intended interpretation of this theory).

[25] This view may also be observed in Campbell v. Acuff-Rose, supra note 17 at 1178, finding fair use not only because of the First Amendment interests behind parody and criticism, but also because of the “unlikelihood that creators of imaginative works will license critical reviews.̶

[26] Matthew Africa, The Misuse of Licensing Evidence in Fair Uses Analysis: New Technologies, New Markets, and the Courts, 88 Calif L. Rev. 1145, 1167 (July, 2000).

[27] Pierre N. Leval, Toward A Fair Use Standard, 103 Harv. L. Rev. 1105 (Mar. 1990).

[28] Id. at 1107.

[29] See, e.g. Stephen Fraser, The Conflict Between the First Amendment and Copyright Law and Its Impact on the Internet, 16 Cardozo Arts & Ent. L.J. 1, 28 (1998), quoting Time Inc. v. Bernard Geis Assocs., 293 F. Supp. 130, 145 (S.D.N.Y. 1968)).

[30] Sony, supra note 8 at 774, 792, n. 31, 795, n. 40, 816.

[31] Leval, supra note 27 at 1110.

[32] H.R. Rep. No. 94-1476, at 66 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5680, quoted in Campbell v. Acuff Rose, supra note 17 at 577.

[33] Harper & Row Pubs., Inc. v. Nation Enters., 471 U.S. 539, 560 (1985).

[34] Campbell, supra note 17 at 577-78.

[35] William F. Patry, Fair Use Misconstrued: Profit Presumptions, and Parody, 11 Cardozo Arts & Ent. L.J. 667, 669-70 (1993).

[36] Id. at 670.

[37] Id. at 471.

[38] Harper & Row, supra note 33 at 566.

[39] Campbell, supra note 17 at 579; Castle Rock Entertainment, Inc. v. Carol Publ'g Group, Inc., 150 F.3d 132, 145 (2d Cir. 1998) (“The Supreme Court has recently retreated from its earlier cases suggesting that the fourth statutory factor is the most important element of fair use”).

[40] Campbell, supra note 17 at 591-92.

[41] See, e.g., Princeton Univ. Press, supra note 11 at 1385 (“We take it that this factor . . . is at least primus inter pares.”); Sundeman v. Seajay Soc’y, Inc., 142 F.3d 194, 206 (4th Cir. 1998) (citing Harper’s language without qualification).

[42] 8 Anne 19 (1710) (Eng.).

[43] William Patry, The Failure of the American Copyright System: Protecting the Idle Rich, 72 Notre Dame L. Rev. 907, 910-11 (May 1997).

[44] L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vand. L. Rev. 1, 25 (1987) (emphasis added).

[45] Id. at 32, 33.

[46] Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996) (en banc) (J. Merritt, dissenting), cert. denied, 117 S.Ct. 1336 (1997).

[47] 403 U.S. 15 (1971).

[48] 485 U.S. 46 (1988).

[49] 376 U.S. 254 (1964).

[50] See, e.g. Harper & Row, supra note 33 at 555-60; Nihon Keizai Shimbun, Inc. v. Comline Business Data, Inc., 166 F.3d 65, 74 (2d Cir. 1999) (stating that the Second Circuit has “repeatedly rejected First Amendment challenges to injunctions from copyright infringement on the grounds that First Amendment concerns are protected by and coextensive with the fair use doctrine.”); Twin Peaks Productions, Inc. v. Publications, Int’l Ltdl, 996 F.2d 336 (2d Cir. 1993) (holding that “except perhaps in an extraordinary case, ‘the fair use doctrine encompasses all claims of first amendment in the copyright field’”); Robert C. Denicola, Mostly Dead? Copyright Law in the New Millennium, 47 J. Copyright Soc'y U.S.A. 193, 204 (2000).

[51] Copyrights Rule, The Standard.com (October 2, 2000).

[52] Id.

[53] L. Ray Patterson, supra note 44 at 61 (“A statutory copyright that gives the copyright owner complete control of public access to the work following its publication has no constitutional basis.”).

[54] Even the WIPO Copyright Treaty affirms in its preamble “the need to maintain a balance between the interests of authors and the larger public interest, particularly education, research and access to information.” WIPO Copyright Treaty, adopted Dec. 20, 1996, WIPO Doc. CRNR/DC/94, pmbl.

[55] Sony v. Universal City Studios, supra note 8 at 451.

[56] Id. at 423-4.

[57] Id. at 425.

[58] New York Times, supra note 49.

[59] Supra note 33 at 549-50 (adopting a narrow, market-centered view of fair use, labeling the privilege as an “exception” available only in isolated cases).

[60] Id.

[61] Zimmerman, supra note 22 at 729.

[62] 499 U.S. 340 (1991) (emphasis added).

[63] Toward A Fair Use Standard, supra note 27 at 1110.

[64] Zimmerman, supra note 22 at 704 (While the statutory copyright in England and the United States began with a basis of the individual's claim to control over her unpublished writings that was moral in nature, “her rights to the work after publication were defined by what would provide the greatest benefit to the public at large . . . any expansion of the copyright monopoly was defensible only if it served the public's needs and not because it satisfied the moral claims of the author.”)

[65] 422 U.S. 151, 156 (1975) (emphasis added).

[66] 286 U.S. 123, 127 (1932).

[67] 510 U.S. 517, 527 (1994).

[68] 334 U.S. 131, 158 (1948) (emphasis added).

[69] Marci Hamilton, Art Speech, 49 Vand. L. Rev. 73, 86?95 (1996) (maintaining that art is crucial to representative democracy because it challenges existing social relations, requiring fresh interpretation of status quo, and that art should be given the same level of First Amendment protection as overtly political speech).

[70] Id. at 96, 102.

[71] Neil Weinstock Netanel, Copyright in a Democratic Civil Society, 106 Yale L.J. 283, 349 (1996), citing Hamilton, supra note 69.

[72] Id. at 350, citing Hamilton, supra note 69 at 96-101 (presenting historical examples where art that was not overtly political threatened entrenched power structures).

[73] Id. at 349.

[74] Id. at 351.

[75] Yarhai Benkler, Free as the Air to Common Use: First Amendment Constraints on the Enclosure of the Public Domain, 74 N.Y.U. L. Rev. 396, 410 (May 1999).

[76] Id.

[77] Id.

[78] Id. at 411.

[79] Leval, supra note 27 at 1115.

[80] Id. at 1118.

[81] Id.

[82] William F. Patry, Copyright and the Legislative Process: A Personal Perspective, 14 Cardozo Arts & Ent. L.J. 139, 140 (1996) (explaining the problem with Congressional lobbying and the effect it has upon Copyright law).

[83] Id.

[84] William Patry, The Failure of the American Copyright System: Protecting the Idle Rich, 72 Notre Dame L. Rev. 907 (May 1997).

[85] Jessica Litman, Revising Copyright for the Information Age, 75 Or. L. Rev. 19, 22, 53 (Spring 1996).

[86] A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).

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