[*]. Visiting Professor, University of San Diego School of Law. Associate Professor, Chapman University School of Law. B.A., with Honors, University of Kansas; M.A., University of Southern California; J.D., University of Chicago. I thank: participants at an Institute for Civil Society colloquium for critiquing my preliminary arguments; colleagues at Chapman University School of Law for taking part in a workshop on an early draft of the paper; faculty of the George Mason University School of Law, the University of San Diego School of Law, and the University of Utah School of Law for hearing presented and discussing a late draft; Kimberly A. Moore, David Post, Malla Pollack, Julie Cohen, Alfred C. Yen, Mark A. Lemley, Doug Galbi, Lee A. Hollaar, and Debra Tussey for commenting on the penultimate draft; John C. Eastman for sharing his expertise on constitutional law; Timothy Sandefur for research and editing; Richard Bonenfant for research; Geoff Fortytwo for a bit of timely technical assistance; and Chapman University School of Law for a summer research scholarship. I bear sole responsibility for this work as submitted for publication. (C) 2001, Tom W. Bell, All rights reserved.
. Here and elsewhere, this paper impliedly focuses on U.S. copyright law. Much of the discussion will, however, apply to copyright law generally.
. This paper defines as "market failure" those instances when civil mechanisms, most notably institutions operating under common law rules, function suboptimally. See Joseph E. Stiglitz, On the Economic Role of the State, in The Economic Role of the State 11, 38 (Arnold Heetje ed., 1989) (explaining that market failure [analysis] asks, "[W]hen will voluntary organizations not work effectively?"); Richard A. Posner, Economic Analysis of Law 343 (3d ed. 1986) (criticizing overly-narrow views of market failure on grounds that "[t]he failure is ordinarily a failure of the market and of the rules of the market prescribed by the common law"). As should (but cannot) go without saying, no mere finding of market failure will justify state action. Because neither civil nor political mechanisms work perfectly, to respond to market failure requires a choice between "the common law system of privately enforced rights and the administrative system of direct public control--and should depend upon a weighing of their strengths and weaknesses in particular contexts." Id.; accord Stiglitz, supra, at 38-39 ("[T]he issue becomes one not of identifying market failures, for these are pervasive in the economy, but of identifying large market failures where there is scope for welfare- enhancing government interventions."). This paper analyzes market failure in terms generous enough to accommodate the concern of some commentators that narrower, purely monetary analyses risk slighting vital aspects of copyright law. See, e.g., Lydia Pallas Loren, Redefining the Market Failure Approach to Fair Use in an Era of Copyright Permission Systems, 5 J. Intell. Prop. L. 1 (1997) (offering a comprehensive argument for viewing market failure broadly in the context of copyright's fair use doctrine); Mark A. Lemley, Beyond Preemption: The Law and Policy of Intellectual Property Licensing, 87 Cal. L. Rev. 111, 129 n.59 (1999) (arguing that market failure analyses of fair use doctrine should extend beyond consensual licensing). The use of "market failure" herein also effectively conveys a central aspect of the Founders' views on justifying state action, though of course without implying that they employed "market failure" itself, a term that arose only much later under neoclassical economics.
. U.S. Const. art I, § 8, cl. 8. The implication here that U.S. copyright law may constitutionally promote both science and the useful arts merits a brief explanation. The clause in full grants congress power "[t]o 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." Id. Some authorities argue that "respective" imposes on the clause a comprehensively parallel construction under which congress has power "[t]o promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their . . . Writings." See, e.g., In re Bergy, 596 F.2d 952, 958 (C.C.P.A. 1979) (quoting H.R. Rep. No. 82-1923 (1952), reprinted in 1952 U.S.C.C.A.N. 2394, 2396) ("The purpose of the first provision is to promote the progress of science[,] . . . the word 'science' in this connection having the meaning of knowledge in general . . . ."); Robert A. Kreiss, Accessibility and Commercialization in Copyright Theory, 43 UCLA L. Rev. 1, 7 n.21 (1995) ("The copyright portion pairs 'Science' with 'Authors' and 'Writings' . . . ."); Loren, supra note 2, at 3 n.2 ("The clause should be read distributively with 'Science,' 'Authors,' and 'Writings' representing the copyright portion . . . ."); William Patry, The Failure of the American Copyright System: Protecting the Idle Rich, 72 Notre Dame L. Rev. 907, 910 n.18 (1997) ("Structurally, the Constitution couples 'Science' with 'Authors' and 'writings' . . . ."). I have quoted the clause in such a fashion, albeit reflexively. See Tom W. Bell, Fair Use Vs. Fared Use: The Impact of Automated Rights Management on Copyright's Fair Use Doctrine, 76 N.C. L. Rev. 557, 585 n.130 (1998). It seems more plausible, however, to read "respective" as imposing a parallel construction not on the clause's justificatory preamble but on only the types of creators and creations listed in the last two sub-clauses. See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349 (1991) (quoting U.S. Const. art. I, §8, cl. 8.) ("The primary objective of copyright is . . . '[t]o promote the Progress of Science and useful Arts."'); Malla Pollack, Unconstitutional Incontestability? The Intersection of the Intellectual Property and Commerce Clauses of the Constitution: Beyond a Critique of Shakespeare Co. v. Silstar Corp., 18 Seattle U. L. Rev. 259, 282-83 (1995) (applying a parallel reading to only last two sub-clauses on grounds of legislative history and canons of construction). This more generous reading comports with good grammar, makes more clear that "limited Times" applies to both the copyright and the patent power, and slightly reduces (but certainly does not eliminate) suspicions that the extraordinarily broad scope of contemporary copyright law transgresses constitutional limits. See infra Part III.E.1 (contrasting the Copyright and Patent Clause's plain language with the expansion of copyright law).
. U.S. Const. art I, § 8, cl. 8.
. Copyright Act of 1976, as amended, 17 U.S.C.A. §§ 101-1332 (1994 & Supp. V 1999).
. See infra Part III.E.
. The Act does not define "work" and uses the term inconsistently, sometimes implying that a work must be fixed, see, e.g., 17 U.S.C. § 101 (1994) ("A work is 'created' when it is fixed . . . ."), and other times implying that a work may be unfixed, see, e.g., id. (defining "derivative work" without reference to fixation). It thus bears noting that this paper uses "expressive works" as shorthand for "original works of authorship fixed in any tangible medium of expression," id. § 102(a) (defining the subject matter of copyright).
. See infra Part II.A. Because the development and use of such self- help tools involves common law rights-such as the right to own a computer, contract with a programmer, or forbid trespass to a research lab--this paper refers to the combination of common law and technological protections as "private" or "common law" protections.
. See infra Part II.B-C.
. See infra Part IV. By way of clarification, it bears noting that mere appeal to the unfortunately mislabeled "common law copyright" cause of action will by no means resurrect an author's statutory rights in common law guise. See Howard B. Abrams, The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright, 29 Wayne L. Rev. 1119, 1129-33 (1983) (arguing that "common law copyright" does not accurately describe the limited rights that authors have to prevent publication of their works).
. I first briefly raised the idea of offering an exit from copyright in Bell, supra note 3, at 614-18. The present Article represents my attempt at a more comprehensive treatment of the concept. See also Julie E. Cohen, Some Reflections on Copyright Management Systems and Laws Designed to Protect Them, 12 Berkeley Tech. L.J. 161, 182-83 (1997) (criticizing escape option on grounds that "allowing unlimited numbers of copyright owners to opt out of the system as it suits them is bad law and bad policy"); Open Discussion, 17 U. Dayton L. Rev. 839, 839-45 (1992) (discussing utility and desirability of avoiding copyright misuse claims by dedicating work to public domain and relying on common law rights); Mark A. Lemley, Intellectual Property and Shrinkwrap Licenses, 68 S. Cal. L. Rev. 1239, 1273-74 (1995) (conjecturing that copyright owners would prefer to avoid choosing between copyright and contract rights); Lemley, supra note 2, at 149-50 (arguing that U.C.C. 2B might make abandoning copyright to rely solely on contract law an attractive option); see also 1 Melville Nimmer & David Nimmer, Nimmer on Copyright § 1.01[B][a], at 1-16 n.69.5 (2000) (criticizing a court for preempting a contract term and suggesting that instead it should have allowed an election of remedies).
. Regarding those other types of federal limits, see Lemley, supra note 2, at 151-63 (describing effects of copyright misuse doctrine and various federal rules affecting intellectual property contracts).
. At the margin of technological advance, of course, the proper shape of common law remains subject to debate and refinement. See, e.g., Dan L. Burk, The Trouble With Trespass, 4 J. Small & Emerging Bus. L. 27 (2000) (critiquing courts' use of trespass to chattles as a means of restricting access to computer networks and proposing a new theory of digital nuisance). The present paper does not attempt to settle such theoretical disputes; it suffices to note that they arise relatively rarely and that they should prove just as susceptible to resolution by courts and commentators as other questions about common law do.
. U.S. Const. art I, § 8, cl. 8.
. The substitution herein of "welfare" and "liberty" for what some commentators respectively call "positive" and "negative" rights follows the suggestion of Randy E. Barnett, The Structure of Liberty 67 n.11 (1998) (crediting Loren E. Lomasky for that usage and praising its "moral neutrality").
. See generally Bell, supra note 3, at 563-79 (describing relevant technology and commentary).
. Alternative terms, too narrow or broad for present use, for the technological enforcement of intellectual property rights include "trusted systems" and "copyright management systems." See Bell, supra note 3, at 560 n.7 (cataloging various usages). But see Kenneth W. Dam, Self-Help in the Digital Jungle, 28 J. Legal Stud. 393, (1999) (preferring "self-help systems" on grounds that terms incorporating "rights" needlessly implicate legal judgments).
. See Bell, supra note 3, at 564-67 (describing ARM technologies in greater detail).
. But see Esther Dyson, Intellectual Value, Wired, July 1995, at 136 (arguing that ARM will have little impact on the trend toward widespread and free copying of digital works); John P. Barlow, The Economy of Ideas: Rethinking Patents and Copyrights in the Digital Age, Wired, Mar. 1994, at 84 (same). Stephen King's recent publication of Riding the Bullet in an electronic book format put ARM to a real-world test. Thanks in part to the legacy of U.S. export regulations on encryption (since relaxed), the "eBook" issued with insufficient protection and soon suffered piracy. See Glen Sanders & Wade Roush, Cracking the Bullet: Hackers Decrypt PDF Version of Stephen King eBook (visited Mar. 23, 2000) <http://www.ebooknet.com/printerVersion.jsp? id=1671>. Still, eBook publishers foresee, with some equanimity, always losing some sales to unauthorized copying. "The reality is there's no such thing as an invincible copy protection system. . . . It's impractical to make it both invincible and usable." Margaret Kane, Stephen King e-book Pirated (visited Mar. 29, 2000) <http:// www.zdnet.com/zdnn/stories/news/0,4586,2487101,00.html> (quoting Len Kawell, president of Glassbook). It matters most that Riding the Bullet probably earned a great deal more as an eBook, even a pirated one, than it would have as a traditional book. See Mike Godwin, Is Stephen King's New eBook Riding the DMCA Bullet? (visited Mar. 31, 2000) <http://lawnewsnetwork.com/stories/A20129- 2000Mar30.html> (estimating King would earn $450,000 for the eBook versus $10,000 for an equivalent hardcopy version).
. See 17 U.S.C.A. §§ 1201-1205 (Supp. V 1999) (codifying the Digital Millennium Copyright Act (DMCA)). These provisions have already been brought to bear against parties who allegedly facilitated the DeCSS crack. See, e.g., Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000) (granting injunction on grounds it violates DMCA to publish program designed to circumvent DVD encryption).
. See, e.g., Paul Edward Geller, Copyright History and the Future: What's Culture Got to Do With It?, 47 J. Copyright. Soc'y 209, 241-45 (2000) (analyzing the extent to which online contracting and "program rules" should supersede copyright); Dam, supra note 17 (describing and praising technological trends that reduce the cost of protecting intellectual property rights); Trotter Hardy, Property (and Copyright) in Cyberspace, 1996 U. Chi. Legal F. 217, 242-47 (1996) (same); Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial Jukebox 224 (1994) (same).
. See, e.g., Bell, supra note 3, at 618-19 (reviewing the costs and benefits of the trend toward "fared use" and predicting that it will generate net benefits but calling for further empirical study); Maureen A. O'Rourke, Copyright Preemption After the ProCD Case: A Market-Based Approach, 12 Berkeley Tech. L.J. 53 (1997) (defending as expedient if not ideal the enforcement of standard form agreements that demand rights more extensive than those allowed under copyright).
. See generally Bell, supra note 3, at 573-79 (describing and classifying dystopian views of ARM).
. Neil W. Netanel, Copyright and a Democratic Civil Society, 106 Yale L.J. 283, 285 (1996).
. Dennis S. Karjala, Federal Preemption of Shrinkwrap and On-Line Licenses, 22 U. Dayton L. Rev. 511, 513 (1997).
. Michael J. Madison, Legal-Ware: Contract and Copyright in the Digital Age, 67 Fordham L. Rev. 1025, 1031.
. Julie E. Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of "Rights Management", 97 Mich. L. Rev. 462, 472 (1998).
. Id. at 550.
. Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified in relevant part at 17 U.S.C.S. §§ 1201-04) (creating civil and criminal penalties for the use or distribution of devices primarily designed or produced to circumvent copyright protection systems and for tampering with copyright management information).
. The National Conference of Commissioners on Uniform State Laws (NCCUSL) approved a draft of the Uniform Computer Information Transactions Act (UCITA), successor to a failed attempted to draft a new Article 2B of the Uniform Commercial Code, in July 1999. See Drafts of Uniform and Model Acts (visited Aug. 11, 2000) <http://www.law.upenn.edu/bll/ulc/ulc_frame.htm>. UCITA has since been adopted by the states of Virginia and Maryland. See NCCUSL, Introductions & Adoptions of Uniform Acts: Uniform Computer Information Transactions Act (visited Aug. 11, 2000) <http://www.nccusl.org/uniformact_ factsheets/uniformacts-fs-ucita.htm>.
. See, e.g., Pamela Samuelson, Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to Be Revised, 14 Berkeley Tech. L.J. 519 (1999) (criticizing the DMCA's anti-circumvention provisions as unnecessary and over-broad); David Nimmer et al., The Metamorphosis of Contract into Expand, 87 Cal. L. Rev. 17 (1999) (criticizing proposed Article 2B of the Uniform Commercial Code on grounds, in part, that it changes extant contract law).
. See, e.g., Bell, supra note 3, at 561-62 (arguing that lawmakers should avoid premature meddling with the evolution of the common law relating to ARM).
. Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified in relevant part at 17 U.S.C.S. §§ 1201-04).
. In that regard, the DMCA provides a particular example of how copyright law in general violates common law rights. See infra Part III.B.1.
. See Lawrence Lessig, The Path of Cyberlaw, 104 Yale L.J. 1743, 1752 (1995) (proposing that until we achieve a better understanding of the Internet "we follow the meandering development of the common law").
. Netanel, supra note 24, at 363.
. Id. at 385 (footnote omitted).
. Karjala, supra note 26, at 521.
. Id. at 540.
. See id. at 531-32, 540.
. See id. at 532-33.
. See Lemley, supra note 2, at 117-36. While proposed Article 2B of the Uniform Commercial Code apparently heightened Lemley's concern about contract law's interference with copyright policy, his article also expresses general wariness about standardized form and shrinkwrap contracts. See id.
. See id. at 139-41.
. See id. at 141-44.
. His discussion of the limits of preemption does invoke the exit option, but only to wonder whether it might serve to draw a more sharp distinction between contracts and statutory law. See id. at 149-50; see also Lemley, supra note 11, at 1274 (surmising that copyright owners would regard the exit option as "an unattractive alternative" to enjoying a full panoply of rights).
. Lemley, supra note 2, at 157.
. Cohen, supra note 29, at 495 (footnote omitted). In equating statutory and common law rights, Cohen perhaps underappreciates the importance that distinguishing it holds for other commentators. For instance, she clumps me among the "cybereconomists," id. at 464, and claims that, as such, I "neglect to note that the existing copyright regime . . . is itself a product of the legislative process." Id. at 494. To the contrary, the sole paper that Cohen cites as evidence of my views clearly contradicts her allegation that I ignore the legislative origins of copyright. See Bell, supra note 3, at 582 ("Lawmakers enacted the Copyright Act to cure an alleged case of market failure . . . ."); see id. at 590-91 (criticizing limitations in the legislative processes that shape copyright law). Cohen likewise errs in claiming that I "posit[ ] the current distribution of ownership and bargaining power as natural." Cohen, supra note 29, at 494-95; see Bell, supra note 3, at 562 (expressly disavowing any analysis of the justifiability of copyright); see id. at 582 (noting the legislative origins of copyright). In thus wrongly assuming that I share her own sort of statist legal positivism, Cohen can at least boast of distinguished company. See Mark A. Lemley, The Law and Economics of Internet Norms, 73 Chi.-Kent L. Rev. 1257, 1265 n.38 (1998) (arguing that I advocate a view that "almost invariably falls back on the authority of the state to enforce . . . private rules as if they were public ones"). Contrary to Lemley, one might well advocate the primacy of consensual ordering without supposing that it "almost invariably" relies on state coercion. See generally Tom W. Bell, Polycentric Law, Humane Stud. Rev., Winter 1991-92, at 1 (surveying law's nonpolitical origins and operations). In fact, their brash talk to the contrary notwithstanding, statist positivists themselves typically (if covertly) rely not on raw coercion to justify legal obligations but rather on respect for natural (or, as they might say, "human," "universal," or "fundamental") rights. See Barnett, supra note 15, at 18-22. Few people really believe that law issues from the barrel of a gun.
. Cohen, supra note 29, at 559.
. See infra Part III.
. Cohen, supra note 29, at 482.
. Myself excepted, of course; I briefly raised the exit option in Bell, supra note 3, at 614-18, and alluded to it again in Tom W. Bell, The Common Law in Cyberspace, 97 Mich. L. Rev. 1746, 1774 (1999) (reviewing Peter Huber, Law and Disorder in Cyberspace (1997)).
. Lemley, supra note 11, at 1274.
. Lemley, supra note 2, at 150. He goes on to emphasize, however, that proposed U.C.C. Article 2B would by no means require copyright owners to make such a choice: "Article 2B is not an opt-out statute. Rather, it permits intellectual property owners to pick and choose a combination of copyright and contractual rules and remedies. By adding its contract-enforcement regime to existing federal intellectual property rights, Article 2B distorts the balance that exists with contract alone." Id.; see also id. at 157 (suggesting that a plaintiff who exited copyright would thereby void copyright misuse defenses).
. See Open Discussion, supra note 11, at 841 (comments of Professor Reichman) ("[O]ne need not assume that the state will continue to allow unlimited freedom of contract in this area.").
. See id. at 843 (comments of Professor Reichman) ("Empirically is it going to turn out like that, anybody else can just up and do it? I doubt the market would be as open as that.").
. Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace, 14 Cardozo Arts & Ent. L.J. 215, 294 (1996); see also id. at 291 n.302 (describing a perspective under which "the inability to contract serves to justify copyright law, and the ability to contract may undermine the justification for copyright protection altogether").
. Open Discussion, supra note 11, at 843 (comments of Professor Lange).
. Cohen, supra note 11, at 94 (footnote omitted). The quote's indiscriminate reference to "rights" and "remedies" perhaps bears clarification. Courts already allow copyright owners to augment their statutory rights with common law ones and to elect freely between overlapping statutory and common law remedies. See infra Part IV.A. Courts do not require any sort of abandonment in such cases. See infra Part IV.A. Cohen's usage on that count--"abandon their claims to copyright protection"-- also confuses. Cohen, supra note 11, at 94. Does she mean abandonment of copyright or suspension of copyright claims during misuse? Regarding the former, see infra Part IV.B; the latter, infra Part IV.C. Interestingly, the quoted passage continues along a line of argument that might well appear in the present paper: "After all, copyright was created to correct market failures arising from the public good characteristic of original expression. If CMS provide a more reliable method of correcting market failure, who needs copyright?" Cohen, supra note 11, at 182-83. Unlike the present paper and as its quotes from her work indicate, however, Professor Cohen ultimately concludes that copyright should trump common law rights.
. Cohen, supra note 11, at 183 (footnote omitted).
. More people would probably think it absurd-or at least oxymoronic-to suggest that copyright owners "should be required to elect only contract remedies," id. Election implies choice. Properly understood, then, election would here imply that copyright owners might choose statutory remedies. See infra Part IV.B.
. See infra Part III.E.2.
. For a brief discussion of the impracticability of expecting legislators or courts to drive copyright owners into statutory exile, see infra Part III.A.
. Cohen, supra note 11, at 183.
. Id. (footnote omitted).
. Cohen, supra note 29, at 464; Julie E. Cohen, Copyright and the Jurisprudence of Self-Help, 13 Berkeley Tech. L.J. 1089, 1118 (1998).
. See Cohen, supra note 29, at 482-83, 491; Cohen, supra note 68, at 1119.
. Friedrich A. Hayek, Individualism and Economic Order 104 (1948).
. See Cohen, supra note 29, at 475 n.36 (asserting without explanation that she intends to include Austrian economics in her critique of neoclassical economics).
. See Israel M. Kirzner, Austrian School of Economics, in 1 The New Palgrave: A Dictionary of Economics 145, 149 (John Eatwell et al. eds., 1998) (emphasizing the significance of "the differences between the Austrian understanding of markets as processes, and that of the equilibrium theorists whose work has dominated much of modern economic theory"); Israel M. Kirzner, Perception, Opportunity, and Profit 3 (1979) ("A characteristic feature of the Austrian approach to economic theory is its emphasis on the market as a process, rather than as a configuration of prices, qualities, and quantities that are consistent with each other in that they produce a market equilibrium situation."); Ludwig von Mises, Human Action 250 (3d rev. ed. 1966) (criticizing economists who "devote all their efforts to describing, in mathematical symbols, various 'equilibria,' that is, states of rest and the absence of action. They deal with equilibrium as if it were a real entity and not a limiting notion, a mere mental tool. What they are doing is vain playing with mathematical symbols, a pastime not suited to convey any knowledge."); Hayek, supra note 70, at 94 ("[C]ompetition is by its nature a dynamic process whose essential characteristics are assumed away by the assumptions underlying static analysis.").
. Consider, for example, Cohen's vacillation about the power of intellectual property licensors. Although she employs rhetoric suggesting that they risk forcing contracts on helpless consumers, see, e.g., Cohen, supra note 68, at 1117 (worrying that licensors will make "a unilateral decision" about how consumers use their products); id. at 1121 ("[I]nformation providers cannot be the ones to decide when certain uses may be restricted . . . ."); id. at 1126 (consumers have "lack of consent and inability to affect the options" offered by licensors), she admits that consumers "can refuse to buy, or hold out for a lower price," id. at 1125. Predicting unhappily that consumers will exercise those rights to accept tighter licensing for lower prices, id. at 1126, and thereby effectively admitting that licensors cannot, after all, dictate their terms, Cohen proposes an Orwellian cure: Entirely forbid consumers from agreeing to bargains of which she disapproves, id. at 1128.
. After spending the bulk of her paper criticizing the alleged failings of private ordering, Professor Cohen addresses the public choice problems with political ordering only in part of a footnote, and even then offers as a remedy only the observation that "looking for ways to improve it would seem a better route than abandoning entirely attempts to respond collectively." Cohen, supra note 29, at 553 n.345.
. See infra Part III.E.2.
. See infra Part III.C.
. See United States v. Paramount Pictures, Inc., 334 U.S. 131, 158 (1948) (describing copyright as a response to market failure and analyzing it in cost/benefit terms); Mazer v. Stein, 347 U.S. 201, 219 (1954) (same); Bell, supra note 3, at 582-83 (same); Elkin-Koren, supra note 59, at 287 (same); 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, 1610-14 (1982) (same); David McGowan, Free Contracting, Fair Competition, and Article 2B: Some Reflections on Federal Competition Policy, Information Transactions, and "Aggressive Neutrality," 13 Berkeley Tech. L.J. 1173, 1228-34 (1998) (same). See generally Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 Harv. L. Rev. 281 (1970) (applying economic analysis to copyright law); Wendy J. Gordon, Asymmetric Market Failure and Prisoner's Dilemma in Intellectual Property, 17 U. Dayton L. Rev. 853 (1992) (same); William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. Legal Stud. 325 (1989) (same).
. White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1, 19 (1908) (Holmes, J., concurring).
. U.S. Const. art I, § 8, cl. 8. Regarding the implication here that U.S. copyright law may constitutionally promote both science and the useful arts, see supra note 3.
. See Mazer v. Stein, 347 U.S. 201, 219 (1954) ("The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare."); see also Mark A. Lemley, Book Review: Romantic Authorship and the Rhetoric of Property, 75 Tex. L. Rev. 873, 879-95 (1997) (reviewing James Boyle, Shamans, Software, and Spleens (1996)) (collecting cases, statutes, and commentary describing the instrumentalist philosophy underlying copyright).
. See, e.g., Alfred C. Yen, Restoring the Natural Law: Copyright as Labor and Possession, 51 Ohio St. L.J. 517, 517 (1990) (criticizing the economic justification of copyright law as incomplete and misleading but admitting that "modern copyright jurisprudence tends to view copyright strictly as a means of achieving economic efficiency. This approach finds support in United States Supreme Court pronouncements which state that copyright exists solely to provide economic incentives for the production of useful works.") (footnotes omitted); Wendy J. Gordon, An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory, 41 Stan. L. Rev. 1343, 1437 (1989) (arguing for basing copyright law on principles of restitution, but admitting that "[t]he relevant Constitutional clause exhibits an instrumental approach" and that "the Supreme Court has consistently stressed copyright's economic role"). Although Professor Gordon observes with hope that, "The Supreme Court has indicated an openness to arguments based on the notion that creative persons deserve a fair return for their labor," id. at 1469, she apparently refers to International News Service v. Associated Press, 248 U.S. 215, 239-40 (1918), a case concerning not copyright but rather misappropriation. See also Justin Hughes, The Philosophy of Intellectual Property, 77 Geo. L.J. 287, 351-52 (1988) (advocating a Hegelian "personality theory" of copyright but admitting that U.S. courts rely on different reasoning). Professor Hughes might find it consoling that subsequent to the publication of his article, the Copyright Act, in order to conform with the Berne Convention, came to recognize moral rights in a very minor regard. See 17 U.S.C. § 106A (1994) (providing authors of limited-edition visual arts with rights of attribution and integrity). Even 106A represents a response to market failure, however, since it merely aims to equalize bargaining power between fledgling artists and dealers by initially vesting waivable moral rights in the former. See id. § 106A(e); Request for Information: Study on Waiver of Moral Rights in Visual Artworks, 57 Fed. Reg. 24,659 (1992) (discussing the origins of § 106A in general and its waiver provision in particular).
. Thomas Macaulay, Speech Before the House of Commons (Feb. 5, 1841), in 8 The Works Of Lord Macaulay 195, 199 (Lady Trevelyan ed., 1866) (opposing a bill which would have extended the duration of copyright protection).
. See L. Ray Patterson, Copyright and the "Exclusive Right" of Authors, 1 J. Intell. Prop. L. 1, 22 (1993) ("Copyright is an intrusion upon the common-law public domain.").
. See infra Part III.B.2.
. White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1, 19 (1908) (Holmes, J., concurring).
. See infra Part IV.
. See infra Part IV.B.
. See infra Part III.E.2.
. Cf. Mark A. Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke L.J. 147, 165-198 (1998) (arguing against exempting preliminary injunctions on copyright infringement from First Amendment limits on prior restraint of speech); Eugene Volokh & Brett McDonnell, Freedom of Speech and Independent Judgment Review in Copyright Cases, 107 Yale L.J. 2431, 2445-51, 2462-63 (1998) (arguing that general principles of First Amendment law call for subjecting "substantial- similarity-of-expression" determinations in copyright infringement cases to independent appellate review).
. For an analysis of how the same sort of argument has functioned with regard to restrictions on indecent or harmful-to-minors Internet speech, and an argument for applying it to restrictions on speech within or by commercial entities and about Internet users, see Tom W. Bell, Pornography, Privacy, and Digital Self-Help, 18 J. Marshall J. Comp. & Info. J. (forthcoming 2000).
. See, e.g., Cohen, supra note 11, at 183 (dismissing a copyright exile policy as "absurd" on grounds that it would violate the public interest).
. See supra Part III.A.
. See infra Part III.B.2.
. See infra Part III.B.2.a.
. See Copyright Office, Library of Congress, Bulletin No. 3 (Revised), Copyright Enactments: Laws Passed in the United States Since 1783 Relating to Copyright 1-21 (reprinting state copyright statutes) [hereinafter Copyright Enactments].
. See, e.g., Connecticut Copyright Act, § 7, reprinted in Copyright Enactments, supra note 95, at 1, 3 (providing that "nothing in this act shall extend to affect, prejudice or confirm the rights which any person may have to the printing or publishing of any book, pamphlet, map or chart, at common law, in cases not mentioned in this act"); Georgia Copyright Act, § IV, reprinted in Copyright Enactments, supra note 95, at 17, 18 (same but for minor grammatical differences); New York Copyright Act, § IV, reprinted in Copyright Enactments, supra note 95, at 19, 21 (same but for minor grammatical differences).
. H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885, 898-99 (1985).
. United States v. Texas, 507 U.S. 529, 534 (1993) (quoting Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952)) (omission in original).
. Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 108 (1991).
. United States v. Texas, 507 U.S. at 534.
. Norfolk Redevelopment and Hous. Auth. v. Chesapeake & Potomac Tel. Co., 464 U.S. 30, 35 (1983) (quoting Fairfax's Devisee v. Hunter's Lessee, 11 U.S. (7 Cranch) 603 (1813)).
. See Fogerty v. Fantasy, Inc., 510 U.S. 517, 533 (1996) (interpreting § 505 of the Copyright Act against the backdrop of the American rule that litigants generally bear their own attorneys fees).
. See Barnett, supra note 15, at 20-22, 25-26 (explaining how an appreciation of natural rights illuminates and legitimizes constitutional principles); id. at 108-31 (describing how common law processes discover, refine, and make concrete natural rights).
. See supra Part II.A. See generally Alex Kozinski & Christopher Newman, What's So Fair About Fair Use?, 46 J. Copyright Soc'y 513, 519-20 (1999) (arguing that copyright does not protect "property" as traditionally understood); Lemley, supra note 80, at 879-95 (criticizing the "romantic" view that intellectual property draws its justification from creators' rights to their creations). But see id. at 894-903 (describing in cautionary terms a trend toward "propertization" of copyright and other types of intellectual property).
. Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932); see also Patterson, supra note 83, at 5 ("There is . . . no reason for confusion as to either the source or the nature of copyright. The authoritative pronouncements that copyright is the grant of a limited statutory monopoly are too many and too clear.").
. See Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 Yale L.J. 1533 (1993); Yen, supra note 81; see also Hughes, supra note 81, at 296- 331 (exploring the uses and limits of the Lockean justification of intellectual property).
. See Tom G. Palmer, Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal Objects, 13 Harv. J.L. & Pub. Pol'y 817, 851-55 (1990) (distinguishing rights to tangible property from claims to intangibles).
. For an argument from irony, consider this: The text that allegedly inspired a natural rights view of copyright among the Founders, John Locke, The Second Treatise of Government, in John Locke, Two Treatises of Government 299 (Laslett rev. ed. 1963) (1690), appears not to have enjoyed copyright protection itself. See Tom W. Bell, What Copyright in Locke Says About Locke on Copyright: An Argument from Irony (unpublished draft manuscript on file with the author).
. John Locke, Observations on the Printing Act Under Consideration in Parliament in 1694, reprinted in 1 Peter King, The Life of John Locke 373, 386 (1830).
. See Copyright Act of 1976, 17 U.S.C.A. §§ 501-511 (Supp. V 1999) (describing remedies for copyright infringement).
. See Bell, supra note 53, at 1763 (arguing that copyright contradicts common law rights because it "undeniably limits our rights to use our printing presses or voices in echo of others' or to contract toward similar ends" (footnote omitted)); Douglas G. Baird, Common Law Intellectual Property and the Legacy of International News Service v. Associated Press, 50 U. Chi. L. Rev. 411, 414 (1983) ("[G]ranting individuals exclusive rights to . . . information . . . conflicts with other rights in a way that granting exclusive rights to tangible property does not.").
. Tom G. Palmer, Intellectual Property: A Non-Posnerian Law and Economics Approach, 12 Hamline L. Rev. 261, 281 (1989); see also Palmer, supra note 107, at 827 (critiquing the Lockean argument for intellectual property rights on grounds that they "restrict others' uses of their own bodies in conjunction with resources to which they have full moral and legal rights"). But see Gordon, supra note 81, at 1423 (responding to Palmer's argument with the Hohfeldian and positivist argument that, "All entitlements limit each other.").
. Though originalists do not always take care to do so, one ought to distinguish between original meaning and original intent. Justice Antonin Scalia explains, "What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended." Antonin Scalia, A Matter of Interpretation 38 (1997). Scalia's focus on original meaning naturally broadens the range of materials that he consults when interpreting the Constitution. He considers the writings of Founders who attended the Constitutional Convention, like Madison and Hamilton, only "because their writings, like those of other intelligent and informed people of the time, display how the text of the Constitution was originally understood. Thus I give equal weight to Jay's pieces in The Federalist and to Jefferson's writings," even though neither of them attended the Convention. Id. What about original intent? Our untrustworthy records of what transpired in the Constitutional Convention and in the states' ratifying conventions, not to mention the incoherence of ascribing intentions to deliberative bodies, should alone discourage attempts to divine the Constitution's original intent. But with regard to copyright in particular, a near-vacuum of recorded debate utterly frustrates the search for original intent, see Edward C. Walterscheid, To Promote the Progress of Science and Useful Arts: The Background and Origin of the Intellectual Property Clause of the United States Constitution, 2 J. Intell. Prop. L. 1, 23-54 (1994) (describing historical record of debates).
. U.S. Const. art. I, § 8, cl. 8.
. See, e.g., Scalia, supra note 113, at 37-41.
. Yen, supra note 81, at 529.
. See Copyright Enactments, supra note 95, at 1-21 (reprinting state copyright statutes). Delaware was the only state to have no such statute. See id. at 21.
. See An Act for the encouragement of literature and genius, passed at January session, 1783 [hereinafter Connecticut Copyright Act], Preamble, Acts and Laws of the State of Connecticut 133-34 (Sherman & Law) (repealed 1812), reprinted in Copyright Enactments, supra note 85, at 1, 1 (1973) (justifying act in part on grounds that "it is perfectly agreeable to the principles of natural equity and justice, that every author should be secured in receiving the profits that may arise from the sale of his works."); An Act for the purpose of securing to authors the exclusive right and benefit of publishing their literary productions, for twenty-one years, passed March 17, 1783, [hereinafter Massachusetts Copyright Act], Preamble, Acts and laws of the Commonwealth of Massachusetts 236 (Edes & Sons), reprinted in Copyright Enactments at 4, 4 (justifying act in part on grounds that "the legal security of the fruits of . . . study and industry . . . is one of the natural rights of all men."); An Act for the encouragement of literature and genius, and for securing to authors the exclusive right and benefit of publishing their literary productions, for twenty years, passed Nov. 7, 1783 [hereinafter New Hampshire Copyright Act], Preamble, The Perpetual Laws of the State of New- Hampshire, from July 1776, to the session in December, 1788, continued into 1789, 161-162 (Melcher) (repealed 1842), reprinted in Copyright Enactments at 8, 8 (same); An Act for the purpose of securing to authors the exclusive right and benefit of publishing their literary productions, for twenty-one years, passed at December session, 1783 [hereinafter Rhode Island Copyright Act], § 1, At the general assembly of the governor and company of the State of Rhode Island and Providence-Plantations, begun and holden at East-Greenwich on the 4th Monday of December, 1783, pp. 6-7 (Carter), reprinted in Copyright Enactments at 9, 9 (same); An Act for securing literary property, passed November 19, 1785 [hereinafter North Carolina Copyright Act], Preamble, Laws of the State of North-Carolina, pp. 563-64 (Edenton, Hodge & Wills), reprinted in Copyright Enactments at 15, 15 (justifying act in part on grounds that "nothing is more strictly a man's own than the fruit of his study."); An Act for the encouragement of literature and genius, passed February 3, 1786 [hereinafter Georgia Copyright Act], Preamble, A Digest of the Laws of the State of Georgia, pp. 323-25 (Watkins & Watkins), reprinted in Copyright Enactments at 17, 17 (justifying act in part on grounds of "principles of natural equity and justice"); An Act to promote literature, passed April 29, 1786 [hereinafter New York Copyright Act], Preamble, Laws of the State of New York, passed by the legislature of said State at their ninth session, pp. 99-100 (Loudon & Loudon), reprinted in Copyright Enactments at 19, 19 (same). See also An Act for the promotion and encouragement of literature, passed May 27, 1783 [hereinafter New Jersey Copyright Act], Preamble, Acts of the seventh general assembly of the State of New Jersey, at a session begun at Trenton, on the 22d day of October, 1782, and continued by adjournments, being the second sitting, ch. 21, p. 47 (Collins) (repealed 1799), reprinted in Copyright Enactments at 6, 6 (justifying the act in part on grounds that "it is perfectly agreeable to the principles of equity.").
. See generally Mary Helen Sears & Edward S. Irons, The Constitutional Standard of Invention-The Touchstone for Patent Reform, 1973 Utah L. Rev. 653, 667-73 (reviewing historical evidence that the Founders had a strong aversion to monopolies). Similar concerns evoked widespread objection to the inclusion, in the Constitution, of the Copyright and Patent Clause. See Walterscheid, supra note 113, at 54-56. Although copyright may not qualify as a monopoly as modern economists use the word, see Bell, supra note 3, at 588 n.142 ("Regardless of how one characterizes their statutory rights, copyright owners do not necessarily enjoy monopoly power in the market for expressive works."), it certainly qualified as such in the usage of the Founding era. As Sir Edward Coke defined it, "A monopoly is an institution, or allowance by the king . . . to any person . . . for the sole buying, selling, making, working, or using of any thing, whereby any person or persons . . . are sought to be restrained of any freedome [sic], or liberty that they had before . . . ." 3 Edward Coke, Institutes of the Laws of England 181 (1986 reprint ed.) (1797).
. Maryland Declaration of Rights art. XXXIX (1776), quoted in Sources of Our Liberties: Documentary Origins of Individual Liberties in the United States and Bill of Rights 346, 350 (Richard L. Perry ed., revised ed. 1978) [hereinafter Sources of Our Liberties]; see also North Carolina Declaration of Rights art. XXII (1776), quoted in Sources of our Liberties, supra, at 355, 356 ("That perpetuities and monopolies are contrary to the genius of a free State, and ought not to be allowed").
. Noah Webster, author of the famed speller, grammar book, and dictionary, stood foremost among these. See Goldstein, supra note 21, at 51 (crediting the origins of U.S. copyright law to Webster's lobbying); Harry R. Warfel, Noah Webster: Schoolmaster To America, 55-58, 132-35, 184-85 (1966) (describing Webster's lobbying efforts and observing that "Webster unquestionably is the father of copyright legislation in America"); Karl Fenning, The Origin of the Patent and Copyright Clause of the Constitution, 17 Geo. L.J. 109, 115 (1929) (crediting the state statutes to "the efficient urging of Noah Webster"). Webster also played an important role in lobbying the Continental Congress to pass a resolution encouraging the states to pass copyright laws. See Walterscheid, supra note 113, at 21. Though the committee that recommended the resolution cited, among other reasons, "that nothing is more properly a man's own than the fruit of his study," id. at 20, that justification merits even less weight than the similar language of some states' copyright statutes. It not only shared their dubious reasoning and origins; it represented mere legislative history to a nonbinding resolution.
. See Francine Crawford, Pre-Constitutional Copyright Statutes, 23 Bull. Copyright Soc'y 11, 21-23 (1975) (reviewing maximum state maximum copyright terms that varied between fourteen and twenty-eight years).
. See id. at 18-21 (summarizing the types of works protected by the state copyright laws). No state copyright statute covered paintings, prints, sheet music, or sculpture. See id. The broadest of them covered only "literary" works. Id.; see Massachusetts Copyright Act, § 2, reprinted in Copyright Enactments, supra note 95, at 4, 4; New Hampshire Copyright Act, § 1, reprinted in Copyright Enactments, supra note 95, at 8, 8; Rhode Island Copyright Act, § 1, reprinted in Copyright Enactments, supra note 95, at 9, 9.
. See Connecticut Copyright Act, § 1, reprinted in Copyright Enactments, supra note 95, at 1, 2 (limiting protection to works authored by inhabitants or residents of U.S.); New Jersey Copyright Act, § 1, reprinted in Copyright Enactments, supra note 95, at 6, 7 (same); Georgia Copyright Act, § 1, reprinted in Copyright Enactments, supra note 95, at 17, 17 (same); New York Copyright Act, § 1, reprinted in Copyright Enactments, supra note 95, at 19, 19 (same); Massachusetts Copyright Act, § 2, reprinted in Copyright Enactments, supra note 95, at 4, 4 (limiting protection to works authored by "subjects" of U.S.); New Hampshire Copyright Act, § 1, reprinted in Copyright Enactments, supra note 95, at 8, 8 (same); Rhode Island Copyright Act, § 1, reprinted in Copyright Enactments, supra note 95, at 9, 9 (limiting protection to works authored by citizens); Pennsylvania Act of 1784 for the encouragement and promotion of learning by vesting a right to the copies of printed books in the authors or purchasers of such copies, during the time therein mentioned, passed March 15, 1784 [hereinafter Pennsylvania Copyright Act], § III, Laws enacted in the second sitting of the eighth general assembly of the Commonwealth of Pennsylvania, which commenced the 13th day of Jan., 1784, ch. 125, pp. 306-308 (Bradford), reprinted in Copyright Enactments, supra note 95, at 10, 10 (same); An Act securing to authors of literary works an exclusive property therein for a limited time, passed October 1785 [hereinafter Virginia Copyright Act], § I, Acts passed at a General Assembly of the Commonwealth of Virginia, pp. 8-9 (Dunlap & Hayes), reprinted in Copyright Enactments, supra note 95, at 14, 14 (same); North Carolina Copyright Act, § 1, reprinted in Copyright Enactments, supra note 95, at 15, 15 (same). Maryland and South Carolina, the notable exceptions to this list of states limiting protection to inhabitants, residents, or citizens, made no claims to copyright's natural status. See An Act respecting literary property, passed April 21, 1783 [hereinafter Maryland Copyright Act], Laws of Maryland, made and passed, at a session of assembly, begun and held at the city of Annapolis on Monday the 21st of April, 1783, ch. 24 (Green), reprinted in Copyright Enactments, supra note 95, at 5; An Act for the encouragement of arts and sciences, passed March 26, 1784 [hereinafter South Carolina Copyright Act], Acts, Ordinances, and Resolves of the General Assembly of the State of South Carolina, passed in the year 1784 pp. 49-51 (Miller), reprinted in Copyright Enactments, supra note 95, at 11.
. See Maryland Copyright Act, § II, reprinted in Copyright Enactments, supra note 95, at 5, (limiting protection to works "already composed and not printed or published, or that shall be hereafter composed"); New Jersey Copyright Act, § 1, reprinted in Copyright Enactments, supra note 95, at 6, 7 (limiting protection to works "not yet printed"); Pennsylvania Copyright Act, § III, reprinted in Copyright Enactments, supra note 95, at 10, 10 (same); North Carolina Copyright Act, § 1, reprinted in Copyright Enactments, supra note 95, at 15, 15 (limiting protection to works "not hitherto printed"); see also Massachusetts Copyright Act, § 3, reprinted in Copyright Enactments, supra note 95, at 4, 4 (limiting remedies to works "not yet printed"); New Hampshire Copyright Act, § 2, reprinted in Copyright Enactments, supra note 95, at 8, 8 (same); Rhode Island Copyright Act § 2, reprinted in Copyright Enactments, supra note 95, at 9, 9 (same).
. See Connecticut Copyright Act, § 1, reprinted in Copyright Enactments, supra note 95, at 1, 2 (limiting copyright protection of books and pamphlets-but not maps and charts-to those "not yet printed"); Georgia Copyright Act, § 1, reprinted in Copyright Enactments, supra note 95, at 17, 17 (same).
. Connecticut Copyright Act, § 7, reprinted in Copyright Enactments, supra note 95, at 1, 3; Georgia Copyright Act, § IV, reprinted in Copyright Enactments, supra note 95, at 17, 19 (same but for a extra comma; to wit: "morals, or religion."); New York Copyright Act, § IV, reprinted in Copyright Enactments, supra note 95, at 19, 21 (same as Georgia Copyright Act); see also North Carolina Copyright Act, § III, reprinted in Copyright Enactments, supra note 95, at 15, 17 (barring copyright protection of works "which may be dangerous to civil liberty, or to the peace or morals of society").
. See New Hampshire Copyright Act, § 1, reprinted in Copyright Enactments, supra note 95, at 8, 8; Rhode Island Copyright Act, § 1, reprinted in Copyright Enactments, supra note 95, at 9, 9.
. See generally Crawford, supra note 122, at 23-25 (reviewing registration requirements).
. See North Carolina Copyright Act, § 1, reprinted in Copyright Enactments, supra note 95, at 15, 16.
. Massachusetts Copyright Act, § 3, reprinted in Copyright Enactments, supra note 95, at 4, 4; New Hampshire Copyright Act, § 1, reprinted in Copyright Enactments, supra note 95, at 8, 8.
. See Connecticut Copyright Act, § 5, reprinted in Copyright Enactments, supra note 95, at 1, 2 (providing penalties for neglecting "to furnish the public with sufficient editions" or selling "at a price unreasonable" a copyrighted work); South Carolina Copyright Act, § 4, reprinted in Copyright Enactments, supra note 95, at 11, 13 (same); Georgia Copyright Act, § III, reprinted in Copyright Enactments, supra note 95, at 17, 18 (same); New York Copyright Act, § III, reprinted in Copyright Enactments, supra note 95, at 19, 20 (same); see also North Carolina Copyright Act, § II, reprinted in Copyright Enactments, supra note 95, at 15, 16 (providing penalties for setting "an unreasonable price" on a copyrighted work).
. One might argue, as has Professor Yen in correspondence with the author, that regardless of the sincerity behind such rhetoric, it influenced those who ratified the Constitution and, thus, the original meaning of the Copyright and Patent Clause. To that I offer the expressio unius counterargument set forth immediately below.
. See Walterscheid, supra note 113, at 10, 37 (citing the practices of the various states as an influence on the Constitutional convention). Although the secretive nature of the Constitutional convention obscures his influence, id. at 38-41, circumstantial evidence strongly suggests that Noah Webster, primary lobbyist for then-extant copyright legislation, also successfully lobbied the Philadelphia delegates to add a copyright clause to the Constitution. See Richard M. Rollins, The Long Journey of Noah Webster 51-52 (1980) (detailing Webster's proximity to the convention, close and continuing contact with many of the delegates, and reputation as an authority on matters of public concern).
. Much the same conclusion follows from interpreting the natural rights language that appeared in the report of the committee that the Continental Congress charged with considering "the most proper means of cherishing genius and useful arts through the United States by securing to the authors or publishers of new books their property in such works." 24 Journals of the Continental Congress 180 (1783). As mere legislative history, the claim of the committee's May 10, 1783 report that "nothing is more properly a man's own than the fruit of his study," id. at 326, carried even less legal weight than similar rhetoric appearing within the statutes passed by the states. More to the point, that James Madison and Hugh Williamson served both as members of the committee and delegates to the subsequent Constitutional Convention leaves very little doubt that those who drafted the Constitution must have considered and impliedly rejected justifying copyright on similar grounds.
. U.S. Const. art. I, § 8, cl. 8.
. See Connecticut Copyright Act, Preamble, reprinted in Copyright Enactments, supra note 95, at 1, 1 (copyright protection "may encourage men of learning and genius to publish their writings"); Georgia Copyright Act, Preamble, reprinted in Copyright Enactments, supra note 95, at 17, 17 (same); Massachusetts Copyright Act, Preamble, reprinted in Copyright Enactments, supra note 95, at 4, 4 ("the efforts of learned and ingenious persons in the various arts and sciences"); Maryland Copyright Act, Preamble, reprinted in Copyright Enactments, supra note 95, at 5, 5 ("encouragement of learned men"); New Jersey Copyright Act, Preamble, reprinted in Copyright Enactments, supra note 95, at 6, 6 ("embellishment of human nature, the honour of the nation, and the general good of mankind"); New Hampshire Copyright Act, Preamble, reprinted in Copyright Enactments, supra note 95, at 8, 8 ("the efforts of ingenious persons in the various arts and sciences"); Rhode Island Copyright Act, Preamble, reprinted in Copyright Enactments, supra note 95, at 9, 9 ("the efforts of learned and ingenious persons, in the various arts and sciences"); Pennsylvania Copyright Act, reprinted in Copyright Enactments, supra note 95, at 10 (entitled in part "AN ACT for the encouragement and promotion of learning"); South Carolina Copyright Act, reprinted in Copyright Enactments, supra note 95, at 11 (entitled "AN ACT for the encouragement of arts and sciences); North Carolina Copyright Act, Preamble, reprinted in Copyright Enactments, supra note 95, at 15, 15 ("to encourage genius, to promote useful discoveries, and to the general extension of arts and commerce"); New York Copyright Act, Preamble, reprinted in Copyright Enactments, supra note 95, at 19, 19 ("encourage persons of learning and genius to publish their writings").
. See H.R. Rep. No. 52-1494, at 2 (1892) ("There is nothing said [in the Constitution's Copyright and Patent clause] about any desire or purpose to secure to the author or inventor his 'natural right to his property."'). Professor Yen argues that although the language of the intellectual property clause "certainly supports economic visions of copyright, it does not eliminate natural law from copyright jurisprudence. In particular, the clause implies that Congress is not empowered to create a new right, but is instead empowered to secure for authors a preexisting right." Yen, supra note 81, at 530 n.91. But if the Constitution's call for legislation "securing" copyrights, U.S. Const. art. I, § 8, cl. 8, implies anything, it most likely implies that such federal legislation should render more secure the rights formerly protected, in piecemeal fashion, under the various states' laws. That reading would comport with Madison's defense of the clause: "The States cannot separately make effectual provision for" copyright protection. The Federalist No. 43, at 272 (J. Madison) (Clinton Rossiter ed., 1961).
. See Patry, supra note 3, at 912 (discussing paucity of evidence from sources other than Madison's comments); Walterscheid, supra note 113, at 23-54 (describing paucity of evidence from the Convention); id. at 56 (citing absence of debate in state ratifying conventions); 1 William F. Patry, Copyright Law And Practice 23-24 (1994) (commenting that we have no evidence of the Convention's deliberations about copyright and relying on the Federalist Papers); Fenning, supra note 121, at 114 (reviewing the evidence and concluding that the clause "apparently aroused substantially no controversy either in the Convention or among the States adopting the Constitution").
. The Federalist No. 43, at 271-2 (J. Madison) (Clinton Rossiter ed., 1961).
. See supra Part III.B.2.a (analyzing rhetoric of state copyright acts).
. Any argument that Madison's rhetoric, regardless of its sincerity, shaped the original understanding of the Constitution must face the same expressio unius counterargument set forth above with regard to the influence of the rhetoric of the state copyright acts. See supra Part III.B.2.a.
. 98 Eng. Rep. 201 (1769). Common law copyright in this context refers not to the generally recognized (and unfortunately mislabeled) right of authors to prevent publication of their unpublished manuscripts, but rather to rights allegedly retained at common law even after publication. See Abrams, supra note 10, at 1129-33 (arguing that "common law copyright" does not accurately describe the limited rights that authors have to prevent publication of their works).
. 98 Eng. Rep. 257 (H.L. 1774). The U.S. Supreme Court later reached a similar conclusion, holding that no federal common law copyright existed and that all federal copyright protection "originated, if at all, under the acts of Congress." Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 663 (1834).
. See Clinton Rossiter, Introduction to The Federalist Papers, at vii, vii (Clinton Rossiter ed., 1961) (giving publication history of The Federalist Papers).
. Compare Scott v. Sanford, 60 U.S. 393, 451 (1856) ("[T]he right of property in a slave is distinctly and expressly affirmed in the Constitution."), with U.S. Const. amend. XIII, § 1 ("Neither slavery nor involuntary servitude . . . shall exist within the United States, or any place subject to their jurisdiction.").
. Letter from Thomas Jefferson to James Madison (July 31, 1788), reprinted in 1 The Republic of Letters: The Correspondence Between Thomas Jefferson and James Madison 1776-1790, at 543, 545 (James Morton Smith ed., 1995).
. Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), reprinted in 1 The Republic of Letters: The Correspondence Between Thomas Jefferson and James Madison 1776-1790, at 562, 566.
. Interestingly, Madison appears to have intuited that seizure of copyright rights in the name of the public interest would call for just compensation-a principle later embodied in the Fifth Amendment. See infra Part III.D.
. See infra Part III.E.2.
. That Jefferson did not raise a natural rights argument bears noting, too.
. Subsequent copyright legislation and practice bore out Madison's view on both counts by trying to promote American authors over foreign ones and, in the process, achieving exactly the opposite effect. See Thomas Bender & David Sampliner, Poets, Pirates, and the Creation of American Literature, 29 N.Y.U. J. Int'l L. & Pol. 255 (1997).
. See Palmer, supra note 112, at 281.
. James Madison, Property, in The Mind of the Founder: Sources of the Political Thought of James Madison 186-87 (Marvin Meyers ed., rev. ed. 1981); id. at 179 (relating that Madison's essay originally appeared in the National Gazette, on March 29, 1792).
. See Powell, supra note 97, at 888-94. For reactions to Powell's analysis, compare Charles A. Lofgren, The Original Understanding of Original Intent?, 5 Const. Commentary 77 (1988), reprinted in Interpreting the Constitution: The Debate Over Original Intent 117 (Jack N. Rakove ed., Northwestern U. Press 1990) (faulting Powell for misusing historical evidence and for ignoring the interpretive understandings of the members of the state ratifying conventions), with Jack N. Rakove, The Original Intention of Original Understanding, 13 Const. Commentary 159 (1996) (arguing that historical evidence does not demonstrate that the Founders thought the intent of the ratifying conventions counted, either, and agreeing with Powell that the members of the Constitutional Convention gave no sign that they thought their intentions should aid in interpreting the Constitution).
. See Powell, supra note 97, at 898-99.
. See Gordon, Asymmetric Market Failure and Prisoner's Dilemma in Intellectual Property, supra note 77, at 869 ("It is expensive to grant new legal rights. It should be done only when common-law rights, physical fences and the like are inadequate means of providing the necessary incentives.").
. See supra Part III.A (describing the market failure justification of copyright); Part III.B (criticizing alternative justifications based in natural rights).
. See supra at Part III.A.
. See generally Madison, supra note 28, at 1093-96 (contrasting the standard market failure analysis with various alternative views).
. Loren, supra note 2, at 33.
. See Netanel, supra note 24.
. Id. at 291.
. U.S. Const. art. I, § 8, cl. 8.
. Dam, supra note 17, at 409; see also Douglas Y'Barbo, On Legal Protection for Electronic Texts: A Reply to Professor Patterson and Judge Birch, 5 J. Intell. Prop. 195, 204-06 (1997) (arguing that copyright law does not remove texts from the public domain and, thus, does not harm the public by so doing).
. 1 Nimmer & Nimmer, supra note 11, § 1.03[A], at 1-66.9 to 1-66.10 (footnote omitted).
. See infra Part III.E.
. U.S. Const. art. I, § 8, cl. 8.
. See Lemley & Volokh, supra note 89, at 190 ("The Copyright and Patent Clause grants power to Congress, but the point of the Bill of Rights is to restrain the federal government in the exercise of its enumerated powers.").
. U.S. Const. art. I, § 8, cl. 8.
. See Henry H. Perritt, Jr., Access to the National Information Infrastructure, 30 Wake Forest L. Rev. 51, 58 (1995) (observing that to deny authors the right to refuse or limit access to their works would implicate property and contract rights).
. As Professor Kmiec succinctly put it, "property not only sustains political participation, but also the conscious choice to be insulated from politics." Douglas W. Kmiec, Property and Economic Liberty as Civil Rights: The Magisterial History of James W. Ely, Jr., 52 Vand. L. Rev. 737, 759 (1999) (reviewing Property Rights in American History (James W. Ely, Jr. ed., 1997)).
. See 17 U.S.C. § 203(a)(5) (1994); see also id. § 304(c)(5) (establishing similar rule with regard to works created before 1978).
. See id. § 106A(e).
. See id. § 301(a); infra Part IV.A.
. Note, however, that applying such demands retroactively would almost certainly require the federal government to provide just compensation, per the Fifth Amendment, to copyright owners. See Gordon, supra note 81, at 1404-05.
. See supra text corresponding to notes 89-93.
. See U.S. Const. amend. I.
. Rubin v. Coors Brewing Co., 514 U.S. 476, 492 (1995) (Stevens, J., concurring); see also Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557, 573 (1995) ("[O]ne important manifestation of the principle of free speech is that one who chooses to speak may also decide 'what not to say."') (quoting Pacific Gas & Electric Co. v. Public Utilities Comm'n, 475 U.S. 1, 16 (1986) (plurality opinion)).
. Boy Scouts of Am. v. Dale, 120 S. Ct. 2446, 2451 (2000) ("Forcing a group to accept certain members may impair the ability of the group to express those views, and only those views, that it intends to express."); Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984) ("[T]he [Supreme] Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment . . . ."). Like other First Amendment rights, the right of expressive association of course has limits. See Board of Dirs. of Rotary Int'l. v. Rotary Club, 481 U.S. 537 (1987) (upholding ban on gender discrimination by private organization); New York State Club Ass'n, Inc. v. City of N.Y., 487 U.S. 1 (1988) (upholding ban on discrimination on the basis of race, creed, sex, or national origin by private organizations).
. NAACP v. Alabama, 357 U.S. 449, 460 (1958) (citing De Jonge v. Oregon, 299 U.S. 353, 364 (1937); Thomas v. Collins, 323 U.S. 516, 530 (1945)).
. Boy Scouts of America, 120 S. Ct. at 2451; see also Griswold v. Connecticut, 381 U.S. 479, 483 (explaining that Bill of Rights protects "forms of 'association' that are not political in the customary sense but pertain to the social, legal, and economic benefit of the members").
. Perritt, supra note 173, at 57. Professor Perritt's subsequent reference to "the right to exclude," id., strongly suggests that by "property rights" he means rights to not intellectual property but rather tangible property. See also Y'Barbo, supra note 167, at 215 n.51 ("Would not a legal rule that compels disclosure to the public of the author's works violate her First Amendment rights?"). But cf. Associated Press v. United States, 326 U.S. 1, 19-20 (1945) (invalidating on antitrust grounds Associated Press bylaws prohibiting service to non-members and rejecting First Amendment defense in view of that amendment's interest in fostering "the widest possible dissemination of information"); Red Lion Broad. Co. v. FCC, 395 U.S. 367, 386-90 (1969) (upholding FCC fairness doctrine in view of relative scarcity of broadcast frequencies); Jerome Barron, Access to the Press-A New First Amendment Right, 80 Harv. L. Rev. 1641 (1967) (advocating welfare right to access mass media); Alan E. Garfield, Promises of Silence: Contract Law and Freedom of Speech, 83 Cornell L. Rev. 261 (1998) (arguing that courts should on First Amendment grounds deny enforcement of contracts of silence when the public interest in access to the suppressed information outweighs any legitimate interest in contract enforcement).
. See supra Part III.A.
. Rust v. Sullivan, 500 U.S. 173, 194 (1991) (upholding statutory prohibition on using federal funds to advocate abortions); see also Regan v. Taxation with Representation, 461 U.S. 540, 549 (1983) ("[A] legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right."); Harris v. McRae, 448 U.S. 297, 317 n.19 (1980) ("A refusal to fund protected activity, without more, cannot be equated with the imposition of a 'penalty' on that activity.").
. U.S. Const. amend. IV.
. Griswold, 381 U.S. at 484 (finding right to privacy emanating from penumbra of Bill of Rights).
. See Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 465 (1977) (recognizing that Bill of Rights protects from violation "a legitimate expectation of privacy in . . . personal communications"); Denius v. Dunlap, 209 F.3d 944, 958 (7th Cir. 2000) (agreeing with "overwhelming majority" view that "some types of financial information involve the degree and kind of confidentiality that is entitled to a measure of protection under the federal constitutional right of privacy"); Quinones v. Howard, 948 F. Supp. 251, 254 (W.D.N.Y. 1996) (collecting cases upholding "a qualified constitutional right to the confidentiality of medical records and medical communications" (citations omitted)).
. See Warden v. Hayden, 387 U.S. 294, 304 (1967) ("The premise that property interests control the right of the Government to search and seize has been discredited.").
. U.S. Const. amend. V.
. Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685, 690 (1897) (citation omitted); see also Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain 88-92 (1985) (analyzing case law in support of proposition that takings clause covers contract rights). The somewhat bald statement of the Court in Long Island Water Supply Co. that "[a] contract is property," 166 U.S. at 690, perhaps merits explanation. The Court did not mean to equate those two very different legal concepts, of course, but rather merely to delineate the scope of the eminent domain clause. See also Omnia Commercial Co. v. United States, 261 U.S. 502, 508 (1923) ("The contract in question was property within the meaning of the Fifth Amendment . . . and if taken for public use the Government would be liable." (emphasis added) (citations omitted)).
. U.S. Const. amend. IX.
. See, e.g., Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) (claiming that Copyright Act "involves a difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society's competing interest in the free flow of ideas, information, and commerce on the other hand"); American Geophysical Union v. Texaco Inc., 60 F.3d 913, 917 (2d Cir. 1994) (referring to "delicate balances established by the Copyright Act"); Morseburg v. Baylon, 621 F.2d 972, 977 (9th Cir. 1980) ("careful balance struck by Congress between those matters deserving of protection and those things that should remain free"); Recording Indus. Ass'n v. Copyright Royalty Tribunal, 662 F.2d 1, 17 (D.C. Cir. 1981) ("'delicate balance' that Congress decreed in the Copyright Act"); Nimmer, supra note 33, at 19 (1999) ("'delicate balance' between the rights of copyright owners and copyright users"); Netanel, supra note 24, at 385 ("careful balance of owner right and user access"); Karjala, supra note 26, at 518 ("carefully honed balances between owners' and users' rights"); Mark A. Lemley, Dealing with Overlapping Copyrights on the Internet, 22 U. Dayton L. Rev. 547, 584 (1997) ("delicate balance"); Niva Elkin-Koren, Copyright Law and Social Dialogue on the Information Superhighway: The Case Against Copyright Liability of Bulletin Board Operators, 13 Cardozo Arts & Ent. L.J. 345, 388 (1993) ("delicate balance").
. Consider Professor Jessica Litman's description of the origins of copyright legislation:
Although a few organizations showed up at the conferences purporting to represent the 'public' with respect to narrow issues, the citizenry's interest in copyright and copyrighted works was too varied and complex to be amenable to interest group championship. Moreover, the public's interests were not somehow approximated by the push and shove among opposing industry representatives.
Jessica Litman, Copyright Legislation and Technological Change, 68 Or. L. Rev. 275, 312 (1989) (footnote omitted).
. See Copyright Act of 1790, § 1, 1 Stat. 124 (1790), reprinted in Copyright Enactments, supra note 95, at 22, 22. For a discussion of the subtleties in the terms provided under this and subsequent copyright acts, see Patry, supra note 2, at 915-23.
. See Act of Feb. 3, 1831, §§ 1-2, 4 Stat. 436, reprinted in Copyright Enactments, supra note 95, at 27, 27. The Act retroactively extended by 14 years copyrights still in their first term as of its effective date. See id. § 16.
. See Copyright Act of 1909, 17 U.S.C. § 23 (1909) (repealed 1978). The Act retroactively extended by 14 years copyrights extant at its effective date. See id. § 24.
. See 17 U.S.C. § 302(a) (1994). The act gave works authored anonymously, pseudonymously, or for hire a term the lesser of publication plus 75 years or creation plus 100 years. See id. § 302(c). It retroactively extended to 75 years copyrights extant at its effective date. See id. § 304(a), (b).
. Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 (1998) (codified at 17 U.S.C.A. § 302(a)-(b) (West Supp. 1999)). Works made anonymously, pseudonymously, or for hire get the lesser of publication plus 95 years or creation plus 120 years. See id. § 302(c). The amendment applies retroactively to copyrights that originated under the 1976 Act. See id. § 302(a)-(c). It retroactively extends to 95 years copyrights extant at its effective date that had originated under the 1909 Act. See id. § 304(a)-(b).
. Figures for the table come from the statutes cited supra notes [197-201, as well as from the Interim Renewal Acts: Act of Sept. 19, 1962, Pub. L. No. 87-668, 76 Stat. 555 (providing that any renewal term subsisting on Sept. 19, 1962, and set to expire prior to Dec. 31, 1965, was continued until Dec. 31, 1965); Act of Aug. 28, 1965, Pub. Law No. 89-142, 79 Stat. 581 (providing that any renewal term subsisting on Aug. 28, 1965, and set to expire prior to Dec. 31, 1967, was continued until Dec. 31, 1967); Act of Nov. 16, 1967, Pub. Law No. 90-141, 81 Stat. 464 (providing that any renewal term subsisting on Nov. 16, 1967, and set to expire prior to Dec. 31, 1968, was continued until Dec. 31, 1968); Act of July 23, 1968, Pub. Law No. 90-416, 82 Stat. 397 (providing that any renewal term subsisting on July 23, 1968, and set to expire prior to Dec. 31, 1969, was continued until Dec. 31, 1969); Act of Dec. 16, 1969, Pub. Law No. 91-147, 83 Stat. 360 (providing that any renewal term subsisting on Dec. 16, 1969, and set to expire prior to Dec. 31, 1970, was continued until Dec. 31, 1970); Act of Dec. 17, 1970, Pub. Law No. 91-555, 84 Stat. 1441 (providing that any renewal term subsisting on Dec. 17, 1970, and set to expire prior to Dec. 31, 1971, was continued until Dec. 31, 1971); Act of Nov. 24, 1971, Pub. Law No. 92-170, 85 Stat. 490 (providing that any renewal term subsisting on Nov. 24, 1971, and set to expire prior to Dec. 31, 1972, was continued until Dec. 31, 1972); Act of Oct. 25, 1972, Pub. Law No. 92-566, § 1, 86 Stat. 1181 (providing that any renewal term subsisting on Oct. 25, 1972, and set to expire prior to Dec. 31, 1974, was continued until Dec. 31, 1974); Act of Dec. 31, 1974, Pub. Law No. 93-573, Title I, § 104, 88 Stat. 1873 (providing that any renewal term subsisting on Dec. 31, 1974, and set to expire prior to Dec. 31, 1976, was continued until Dec. 31, 1976).]. In calculating copyright terms based on the life of the author, the table conservatively assumes that authors create their works at age 35 and live for 70 years.
[Author's note: The amendments made to this footnote and to Table 1 reflect the helpful comments of Prof. John Rothchild. Specifically, this version of the paper amends the originally published one by including data relating to the 1962-74 Interim Renewal Acts and by showing the retroactive effect of the Sonny Bono Copyright Extension Act to reach back to 1923. I am deeply grateful for Prof. Rothchild's careful attention and diligent scholarship.]
. U.S. Const. art. I, § 8, cl. 8.
. See Copyright Act of 1790, § 1, 1 Stat. 124 (1790), reprinted in Copyright Enactments, supra note 95, at 22, 22.
. See Act of April 29, 1802, ch. 15, § 2, 2 Stat. 171, reprinted in Copyright Enactments, supra note 95, at 24, 25.
. See Act of Feb. 3, 1831, § 1, 4 Stat. 436, reprinted in Copyright Enactments, supra note 95, at 27, 27.
. See Act of Aug. 18, 1856, 11 Stat. 138, reprinted in Copyright Enactments, supra note 95, at 33, 33.
. See Act of Mar. 3, 1865, § 1, 13 Stat. 540, reprinted in Copyright Enactments, supra note 95, at 34, 34.
. See Act of July 8, 1870, § 86, 16 Stat. 212, reprinted in Copyright Enactments, supra note 95, at 36, 36-7. A subsequent act temporarily moved from the Copyright Office to the Patent Office registration of engravings, cuts, or prints not connected with the fine arts. Act of June 18, 1874, § 3, 18 Stat. 78, reprinted in Copyright Enactments, supra note 95, at 47, 48. This purely administrative move apparently had no effect on whether such works could be copyrighted, however. See id. (charging the Commissioner of Patents with registration of such works "in conformity with the regulations provided by law as to copyright of prints"); see also Act of July 31, 1939, 54 Stat. 51, reprinted in Copyright Enactments, supra note 95, at 99, 99 (repealing Act of June 18, 1874 and referring throughout to copyrights registered in the Patent Office).
. See Act of Aug. 24, 1912, ch. 356, 37 Stat. 488 (1912), reprinted in Copyright Enactments, supra note 95, at 87, 87.
. See Act of July 17, 1952, Pub. L. No. 82-575, 66 Stat. 752 (1952), reprinted in Copyright Enactments, supra note 95, at 127, 127.
. See The Sound Recording Act, Pub. L. No. 92-140, 85 Stat. 391 (1971), § (a), reprinted in Copyright Enactments, supra note 95, at 135-M, 135-M (amending 17 U.S.C. § 102).
. See Act of Dec. 12, 1980, Pub. L. No. 96-517, 94 Stat. 3015, 3028 (1980) (amending 17 U.S.C. § 101).
. See The Architectural Works Copyright Protection Act, Pub. L. No. 101-650, 701-706, 104 Stat. 5089, 5133 (1990) (amending 17 U.S.C. § 102(8)).
. See Act of Jan. 12, 1895, § 52, 28 Stat. 608, reprinted in Copyright Enactments, supra note 95, at 55, 55. A subsequent act modified but did not clearly expand the scope of this exception. See Act of Jan. 27, 1938, 52 Stat. 6 (providing in § 1 that United States might secure copyrights in black-and-white illustrations of its postage stamps and exempting in § 2 criminal sanctions for reproduction for philatelic purposes of such illustrations of U.S. and foreign stamps).
. See 17 U.S.C. § 106A (1994) (protecting attribution and integrity rights of authors of works of visual arts).
. See 17 U.S.C.A. §§ 1301-32 (West Supp. 1999). Given that the act claims to protect "original" designs, id. § 1301(a)(1), one might argue that such protections belong within the scope of copyright law. Two embarrassing questions dog that claim, however: Why did federal lawmakers feel compelled to add a whole new chapter of the Copyright Act giving vessel hulls special protection? And why did Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989), overturn comparable state legislation on grounds that it conflicted not with federal copyright law but with federal patent law?
At any rate, though, the act's definition of "original," because it requires "a distinguishable variation over prior work," 17 U.S.C.A. § 1301(b)(1), more closely resembles patent law's novelty requirement than copyright law's customary originality requirement, which requires merely that an author show independent creation. As Judge Learned Hand put it, "[I]f by some magic a man who had never known it were to compose anew Keat's Ode on a Grecian Urn, he would be an 'author,"' for purposes of the Copyright Act. Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936); see also 1 Paul Goldstein, Copyright § 188.8.131.52, at 2:12 (2d ed. 2000) ("Courts in copyright cases do not require novelty of the sort required in patent cases . . . ."); 1 Nimmer & Nimmer, supra note 11, § 2.01[A], at 2-7 ("[T]he originality necessary to support a copyright merely calls for independent creation, not novelty." (footnote omitted)).
. See 17 U.S.C.A. §§ 1201-05 (Supp. V 1999) (providing civil and criminal penalties for a variety of acts that might interfere with the effectiveness of copyright management systems).
. See Copyright Act of 1790, § 1, 1 Stat. 124 (1790), reprinted in Copyright Enactments, supra note 95, at 22, 22 (granting to copyright owners "the sole right and liberty of printing, reprinting, publishing and vending" protected works). But see id. § 2, at 23 (providing remedy against unauthorized printing, reprinting, publishing, or importation of copyrighted works).
. See 17 U.S.C.A. § 106 (Supp. V 1999).
. See Copyright Act of 1790, § 2, 1 Stat. 124 (1790), reprinted in Copyright Enactments, supra note 95, at 22, 23 (providing for forfeiture of infringing copies to the copyright owner, "who shall forthwith destroy the same," and for payment "of fifty cents for every [infringing] sheet which shall be found in his or their possession," payable in equal halves to the copyright owner and the United States).
. See 17 U.S.C.A. § 503 (Supp. V. 1999) (providing civil remedies of impounding and disposition of infringing articles and devices used in infringing works); see also id. §§ 506(b), 509 (providing for similar remedies in criminal cases).
. See id. § 504.
. See id. § 505.
. See id. §§ 601-03.
. See id. § 512(h).
. See id. § 506 (calling for criminal punishments in certain cases as provided under 18 U.S.C.S. § 2319 (Lexis Supp. 2000)); 18 U.S.C. § 2319 (Supp. V 1999) (setting forth applicable fines and prison terms); see also 17 U.S.C. §§ 506(b), 509 (providing in criminal cases for the seizure and forfeiture to the United States of infringing items and devices used to infringe). For a detailed analysis of the causes and potentially worrisome effects of one recent expansion of criminal liability under the Copyright Act, see Lydia Pallas Loren, Digitization, Commodification, Criminalization: The Evolution of Criminal Copyright Infringement and the Importance of the Willfulness Requirement, 77 Wash. U. L.Q. 835 (1999).
. See Copyright Act of 1790, 1 Stat. 124 (1790), reprinted in Copyright Enactments, supra note 95, at 22, 22-24.
. See id. (by the author's estimate).
. See 17 U.S.C.A. §§ 101-803 (1996); id. §§ 1001-1332 (Supp. V 1999) (word count by author's estimate).
. See id. (by the author's estimate).
. See id. § 119.
. See id. § 121; see also id. § 110(8)-(9) (allowing under certain conditions performance of literary works for disabled persons).
. See id. § 512. Note that, strictly speaking, § 512 does not limit rights under the Act but rather the remedies for infringement.
. See also id. § 111(a)-(b), (e) (allowing under certain conditions secondary transmissions embodying performances or displays of a work); id. § 112 (allowing under certain conditions transmitting organizations to make ephemeral recordings); id. § 113(c) (allowing advertisements, commentaries, and news reports distributing or displaying useful articles embodying copyrighted works); id. § 114(a)-(c) (limiting rights in sound recordings so as to safeguard copyrights in underlying works thus recorded); id. § 114(d) (defining rights in sound recordings so as to allow under certain conditions performance via digital audio transmission); id. § 120(b) (allowing alterations of buildings embodying copyrighted works).
. See id. § 108 (allowing under certain conditions reproduction by libraries and archives); id. § 110(1)-(4), (6), (10) (allowing under certain conditions nonprofit entities to perform or display works); id. § 110(7) (allowing performance of nondramatic music works to promote sales); id. § 117 (excusing functionally necessary or archival copying of computer programs); id. § 120(a) (allowing representations of architectural works constructed in public places and alterations of buildings embodying copyrighted works); see also id. § 513 (providing for determination of reasonable license fees charged by performing rights societies). Note that, strictly speaking, § 513 does not limit rights under the Act but rather the remedies for infringement.
. See id. § 111(c)-(d) (specifying compulsory licensing of secondary transmissions by cable systems); id. § 112(e) (providing for the compulsory licensing of certain ephemeral recordings); id. § 114(d)(2), (e)-(f) (relating to compulsory licensing of performance of sound recordings publicly via digital audio transmissions); id. § 115 (describing compulsory licensing for the making and distribution of phonorecords); id. § 118(b)(3), (d) (providing that Librarian of Congress may establish a binding schedule of rates and terms for use of certain copyrighted works by public broadcasting entities).
. See id. § 107 (codifying the fair use doctrine).
. See id. § 109 (codifying the first sale doctrine).
. With regard to codification of the fair use doctrine, see Harper & Row, Publishers, Inc. v. Nation Enter., 471 U.S. 539, 549 (1985) (stating that § 107 was "'intended to restate the [pre-existing] judicial doctrine of fair use, not to change, narrow, or enlarge it in any way"') (quoting H.R. Rep. No. 94-1476, at 66 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5680) (alteration in original); see also S. Rep. No. 94-473, at 62 (1976) (making same statement as House Report). With regard to the codification of the first sale doctrine, see 2 Goldstein, supra note 217, § 5.6.1, at 5:106-108, which credits Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908), the leading case in a long line of decisions, as the holding that Congress codified in the Copyright Act of 1909, ch. 320, § 41, 35 Stat. 1075, 1084 (1909). The Copyright Revision Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541,replaced § 41 with 17 U.S.C. § 109, the current codification of the first sale doctrine, without substantially altering it.
. See The Record Rental Amendment of 1984, Pub. L. No. 98-450, 98 Stat. 1727 (1984) (codified as amended at 17 U.S.C. § 109(b)) (excluding sound recordings from scope of first sale doctrine); The Computer Software Rental Amendments Act of 1990, Pub. L. No. 101-650, Tit. VIII, § 804, 104 Stat. 5136 (1990) (codified at 17 U.S.C. § 109(b)) (excluding computer programs from scope of first sale doctrine).
. Seminal works on public choice theory include James M. Buchanan & Gordon Tullock, The Calculus of Consent (1962); Mancur Olson, Jr., The Logic of Collective Action (1965).
. See Jessica Litman, Copyright and Information Policy, 55 Law & Contemp. Probs. 185, 187-195 (1992) (describing the interest group dynamics affecting copyright legislation); Jessica Litman, Copyright, Compromise, and Legislative History, 72 Cornell L. Rev. 857, 865-79 (1987) (describing legislative processes through which commercial interests shaped the 1976 Copyright Act); L. Ray Patterson, supra note 83, at 27 (1993) (arguing that the copyright industry "plays a dominant role in shaping copyright legislation with small-minded concerns, weighted as they are by the desire for control and profit" (footnote omitted)). See generally Litman, supra note 196 (examining critically the considerable influence of industry representatives on copyright legislation); Stewart E. Sterk, Rhetoric and Reality in Copyright Law, 94 Mich. L. Rev. 1197 (1996) (arguing that interest-group power, together with the stake that the "elite" have in copyright rhetoric, explains the expansion of copyright law).
. See, e.g., Loren, supra note 2, at 537-38 (reviewing the expansion of copyright law and concluding that "copyright law has evolved into a profit maximizing tool for the powerful content industry").
. See Bell, supra note 3, at 590-592 (discussing the impossibility of calculating the proper quid pro quo for copyright's fair use doctrine); Ejan Mackaay, Economic Incentives in Markets for Information and Innovation, 13 Harv. J.L. & Pub. Pol'y 867, 906 (1990) (describing questions about the optimality of copyright's quid pro quo as "vacuous").
. See Jessica Litman, The Public Domain, 39 Emory L.J. 965, 997-8 (1990) (characterizing as an "unruly brawl" debate among economists about copyright's effects and concluding that in general "empirical data is not only unavailable, but is also literally uncollectible"); Yen, supra note 81, at 542- 43 ("[T]he empirical information necessary to calculate the effect of copyright law on the actions of authors, potential defendants, and consumers is simply unavailable, and is probably uncollectible."). See generally Hayek, supra note 70, at 77-78 (1948) (the knowledge essential for central planning does not exist in concentrated form).
. See Hardy, supra note 21, at 257 (arguing that in the face of rapid technological change, "the high costs of group decision making ensure that the Copyright Act will be long out of date before it can be revised appropriately").
. See George Priest, What Economists Can Tell Lawyers About Intellectual Property, in 8 Research In Law And Economics: The Economics of Patents and Copyrights 19, 21 (1986) ("[E]conomists know almost nothing about the effect on social welfare of the patent system or of other systems of intellectual property."); see also Ludwig von Mises, Liberalism in the Classical Tradition 70-75 (3d ed. 1985) (1962) (economic calculation cannot proceed absent price signals).
. Black's Law Dictionary 518 (6th ed. 1990). Note, however, that in general no similar doctrine bars a party from obtaining overlapping types of intellectual property protection. See In re Yardley, 493 F.2d 1389 (C.C.P.A. 1974) (allowing design patent in copyrighted article); Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983) (holding that software program may enjoy both patent and copyright protection); 37 C.F.R. § 202.10(a) (2000) (providing that patentability does not bar copyright registration); id. § 202.10(b) (providing that trademark protection does not bar copyright registration). But see Traffix Devices, Inc. v. Marketing Displays, Inc., 121 S. Ct. 1255 (2001) (holding that party making trade dress claim to elements also claimed in utility patent bears heavy burden of proving alleged trade dress not barred as functional).
. Under the Federal Rules of Civil Procedure, plaintiffs can plead in the alternative quite liberally. See 5 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure: Civil 2d § 1219-Theory of the Pleadings Doctrine 189-191 (1990 & Supp. 1999) (describing how Federal Rules of Civil Procedure effectively abolish the theory of pleadings doctrine that formerly restricted pleas in the alternative). Copyright claims generally end up in federal court, see 3 Nimmer & Nimmer, supra note 11, § 12.01[A] (describing scope of federal jurisdiction over claims involving copyright), while those raising preemption issues do so almost as a matter of certainty, see id. § 12.01[A] [d], at 12-13 to 12-14.1 (describing operation of "complete preemption" doctrine providing for removal to federal court). At any rate, though, "virtually all courts today permit inconsistent allegations, whether separately pleaded or not, if they are made in good faith." John J. Cound et al., Civil Procedure 496 (5th ed. 1989).
. See MCA Television Ltd. v. Public Interest Corp., 171 F.3d 1265, 1276 (11th Cir. 1999), reh'g en banc denied, 182 F.3d 938 (11th Cir. 1999) (implying a right to freely choose between inconsistent copyright and common law remedies by holding that the plaintiff had, by ratifying the contract in its pleadings, elected to recover under it and it alone); Costello Publ'g Co. v. Rotelle, 670 F.2d 1035, 1045 (D.C. Cir. 1981) (remanding with instructions to allow election, in the event that infringement was found, between suit for breach of contract or for copyright infringement arising from use of copyrighted works outside the scope of the license); Twentieth Century-Fox Film Corp. v. Peoples Theatres, Inc., 24 F. Supp. 793, 795 (D. Ala. 1938) (asserting that plaintiff had the right to elect between contract and copyright remedies); Metro-Goldwyn-Mayer Distrib. Corp. v. Bijou Theatre Co., 3 F. Supp. 66, 74 (D. Mass. 1933) (same); see also 3 Nimmer & Nimmer, supra note 11, § 10.15[A], at 10-116 ("Conduct that constitutes both a breach of covenant and the failure of a condition will permit an election of remedies based either upon breach of contract or copyright infringement." (footnote omitted)).
. See MCA Television Ltd., 171 F.3d at 1276; Bieg v. Hovnanian Enters., Inc., Civ. No. 98-5528, 1999 U.S. Dist. LEXIS 17387, at *18-19 (E.D. Pa. Nov. 9, 1999) (holding that plaintiff must elect between contract and copyright remedies where they overlap, but need not do so where they do not); Williams & Co. v. Williams Co.-East, 377 F. Supp. 418, 429 (C.D. Cal. 1974) (awarding separate damages for breach of contract and copyright infringement arising after contract repudiated), aff'd, 542 F.2d 1053 (9th Cir. 1976).
. Compare Paramount Pictures Corp. v. Metro Program Network, Inc., 962 F.2d 775, 780 (8th Cir. 1991) (affirming award for both breach of contract and copyright infringement on grounds they were entirely separate injuries), with MCA Television Ltd., 171 F.3d at 1274-75 (criticizing Paramount for failing to address election of remedies doctrine barring double recovery); see also Joseph J. Legat Architects, P.C. v. United States Dev. Corp., No. 84-C- 8803, 1991 U.S. Dist. LEXIS 3358, *28-32 (N.D. Ill. Mar. 20, 1991) (rejecting magistrate's report on grounds that damages for copyright infringement, as measured by "value of use," may be recovered in addition to damages for breach of contract); see also id. at *20 n.7 (indicating that courts following a different theory of the measure of damages for copyright infringement might reach a different conclusion).
. See, e.g., 1 Nimmer & Nimmer, supra note 11, § 1.01[B][a], at 1- 16 n.69.5 (criticizing the court in Wolff v. Institute of Electrical and Electronics Engineers, Inc., 768 F. Supp. 66 (S.D.N.Y. 1991), on grounds that it "could have required the plaintiff to adopt an election of remedies to the extent that the copyright and contract causes of action were deemed inconsistent"); MCA Television Ltd., 171 F.3d at 1274-75 (criticizing sister circuit for overlooking election of remedies doctrine).
. See R. Ross Viguet, Casenote: National Car Rental System, Inc. v. Computer Associates International, Inc.: A Hole in Software Copyright Protection You Can Drive a Rental Car Through, 49 Ark. L. Rev. 93, 116-17 (1996) (criticizing on grounds that it ignores congressional intent behind § 301 Nimmer's analysis of Wolff). Reliance on § 301's notoriously cloudy legislative history and failure to address the widespread acceptance of the "extra element" exception to § 301's scope render the casenote's criticism suspect, however. See Architectronics, Inc. v. Control Systems, Inc., 935 F. Supp. 425, 440-41 (criticizing reliance on § 301's legislative history); infra text accompanying notes 242-45 (discussing prevalence and effect of "extra element" test).
. 17 U.S.C. § 301(a) (1994) (emphasis added); see also id. § 301(b) ("Nothing in this title annuls or limits any rights or remedies under the common law . . . with respect to . . . (3) activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of [the statute].").
. The Act's provision of nonwaivable termination rights represents the one other, albeit very narrow way in which the Copyright Act preempts a particular type of contract. See id. §§ 203, 304(c). For consideration of how those provisions affect the exit option, see infra Part IV.B.
. ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1454-55 (7th Cir. 1996) (holding contract claim not preempted because it reflects private ordering of parties); Architectronics, Inc., 935 F. Supp. at 439-41 (noting and following consensus among courts and commentators that the extra element of promise saves a breach of contract claim from preemption, and criticizing cases to the contrary); Meyers v. Waverly Fabrics, 479 N.E.2d 236, 237-38 (1985) (concluding from legislative history that § 301 does not preempt contract claims); Ronald Litoff, Ltd. v. American Express Co., 621 F. Supp. 981, 986 (S.D.N.Y. 1985) (asserting without analysis that contract claim concerning rights to copyrighted works not preempted); see also 3 Goldstein, supra note 217, § 15.2.1, at 15:12 ("Contract law is a good example of a state law that will be immune from preemption under the extra element test . . . [because] contract law requires the plaintiff to prove the existence of a bargained-for-exchange-something it need not prove in a cause of action for copyright infringement."). Less controversially, the "extra element" saving a contract claim from § 301 preemption can come from facts more particular than the bargained-for-exchange common to all contracts. See Lennon v. Seaman, 63 F. Supp. 2d 428, 438 (S.D.N.Y. 1999) (finding contract claim alleging non-disclosure right not preempted); Law Bulletin Publ'g Co. v. LRP Publications, Inc., 98-8122-CIV-RYSKAMP, 1998 U.S. Dist. LEXIS 11345, *14-15 (S.D. Fla. June 18, 1998) (finding contract claim alleging breach due to conveyance to third party not preempted); National Car Rental Sys., Inc. v. Computer Assocs. Int'l, Inc., 991 F.2d 426, 431-33 (8th Cir. 1993) (holding contract claim alleging prohibition on processing data for third parties not preempted); Michael Nobel v. Bangor Hydro-Elec. Co., 584 A.2d 57, 58 (Me. 1990) (holding contract claim alleging promise to pay not preempted); Taquino v. Teledyne Monarch Rubber, 893 F.2d 1488, 1501 (5th Cir. 1990) (holding contract claim alleging prohibition on use of copyrighted works as sales material not preempted); Acorn Structures, Inc. v. Swantz, 846 F.2d 923, 926 (4th Cir. 1988) (holding contract claim alleging duty to either buy copyrighted plans or purchase building materials not preempted); Brignoli v. Balch Hardy and Scheinman, Inc., 645 F. Supp. 1201, 1205 (S.D.N.Y. 1986) (holding contract claims alleging breach of duty to pay not preempted); Smith v. Weinstein, 578 F. Supp. 1297, 1307 (S.D.N.Y. 1984) (stating that contract claim alleging nothing more than copyright infringement should be preempted but holding contract claim alleging breach of confidentiality not preempted), aff'd, 738 F.2d 419 (2d Cir. 1984).
. See Ballas v. Tedesco, 41 F. Supp. 2d 531, 536-37 (D.N.J. 1999) (finding contract claim preempted as equivalent to rights under Copyright Act); American Movie Classics Co. v. Turner Entertainment Co., 922 F. Supp. 926, 931-32 (S.D.N.Y. 1996) (holding contract claim preempted because it alleged no rights other than those protected by copyright law); Benjamin Capital Investors v. Cossey, 867 P.2d 1388, 1391 (1994) (same); Wolff v. Institution of Elec. and Elecs. Eng'rs, Inc., 768 F. Supp. 66, 69 (S.D.N.Y. 1991) (holding contract claim preempted where infringement of copyright was sole breach alleged); see also 3 Goldstein, supra note 217, § 15.2.1, at 15:13 ("Simply casting a claim as one for contract breach will not save it from preemption.").
. See Lennon, 63 F. Supp. 2d at 438 (finding non-disclosure duty in contract provided an extra element protecting contract claim from preemption); Law Bulletin Publ'g Co., 1998 U.S. Dist. LEXIS 11345, at * 14-15 (duty to not convey copyrighted materials to third party); National Car Rental Sys., Inc., 991 F.2d at 431-33 (duty to not process data for third parties); Michael Nobel, 584 A.2d at 58 (duty to pay); Taquino, 893 F.2d at 1501 (duty to not use copyrighted works as sales material); Acorn Structures, Inc., 846 F.2d at 926 (duty to either buy plans or purchase materials from plaintiff); Smith, 578 F. Supp. at 1307 (duty of confidentiality); see also Tavormina v. Evening Star Prods., Inc., 10 F. Supp. 2d 729, 734 (S.D. Tex. 1998) (mem.) (preempting portion of contract claim citing the allegations identical to those that would support a copyright infringement claim while declining to preempt portion of contract claim citing broader rights). Some authority reads § 301's reference to "equivalent" rights very loosely. See 1 Nimmer & Nimmer, supra note 11, § 1.01[B], at 1- 12 ("The fact that the state-created right is either broader or narrower than its federal counterpart will not save it from preemption."); 3 Goldstein, supra note 217, § 15.2.1, at 15:9 (same). But even granting such deviance from the plain language of § 301, a contract claim--as opposed to, say, a claim under a state statute--alleging rights in excess of those specified in the Copyright Act will of necessity allege more than mere infringement, thus satisfying even courts that have found contract claims preempted under § 301(a). See infra note 245.
. See 17 U.S.C. § 109 (1994) (specifying conditions under which the Act does not prevent the owner of a particular copy or phonorecord from selling or otherwise disposing of it at will).
. See Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 350-51 (1908).
. See Platt & Munk Co. v. Republic Graphics, Inc., 315 F.2d 847, 851-55 (S.D.N.Y. 1962) (holding that if on remand the trial court finds title to copyrighted works properly vested in defendant case should be resolved under contract law); see also Quality King Distribs. v. L'Anza Research Int'l, 523 U.S. 135, 143 n.10 (1998) (quoting Bobbs-Merrill so as to indicate that breach of contract suit might have proceeded even though copyright infringement claim barred by first sale doctrine); Microsoft Corp. v. Harmony Computers & Elecs., 846 F. Supp. 208, 214 (E.D.N.Y. 1994) ("[E]ven assuming that Microsoft sells its software to its licensees on a stand-alone basis, this does not change the fact that . . . the licensees . . . are restricted by the license agreement in a way that the copyright holder itself is not."); American Int'l Pictures, Inc. v. Foreman, 576 F.2d 661, 664 n.3 (5th Cir. 1978) (observing that the first sale doctrine does not bar contract suits); United States v. Wise, 550 F.2d 1180, 1187 n.10 (9th Cir. 1977) (same); Independent News Co. v. Williams, 293 F.2d 510, 516 (3d Cir. 1961) (quoting Harrison v. Maynard, Merrill & Co., 61 F. 689, 691 (2d Cir. 1894) (saying of defendant having good title to copies of plaintiff's copyrighted works, "If he has agreed that he will not sell it for certain purposes or to certain persons, and violates his agreement, and sells to an innocent purchaser, he can be punished for a violation of his agreement; but neither is guilty, under the copyright statutes, of an infringement.")).
. See H.R. Rep. No. 94-1476, at 62, reprinted in 1976 U.S.C.C.A.N. 5659, 5693 (first sale doctrine set forth in § 109 "does not mean that conditions on future disposition of copies or phonorecords, imposed by a contract between their buyer and seller, would be unenforceable between the parties as a breach of contract, but it does mean that they could not be enforced by an action for infringement of copyright").
. See Lemley, supra note 2, at 141 ("[S]ection 301 does not seem to preempt most contractual provisions . . . .").
. Compare id. at 141-44, 151-58 (emphasizing the potential of Supremacy Clause preemption and copyright misuse doctrine, respectively, in limiting contract law), with Raymond T. Nimmer, Breaking Barriers: The Relation Between Contract and Intellectual Property Law, 13 Berkeley Tech. L.J. 827, 864-66, 867-73 (1998) (emphasizing the deficiencies of Supremacy Clause preemption and copyright misuse doctrine, respectively, in limiting contract law).
. See infra Part IV.B-C (discussing implied conflicts preemption and copyright misuse, respectively).
. See Pacific & S. Co. v. Duncan, 572 F. Supp. 1186, 1196 (N.D. Ga. 1983) (finding that television station abandoned copyright in news broadcasts because evinced intent to do so by destroying copies thereof), aff'd in relevant part, 744 F.2d 1490, 1500 (11th Cir. 1984); Hadady Corp. v. Dean Witter Reynolds, Inc., 739 F. Supp. 1392, 1399 (C.D. Cal. 1990) (finding that notice limiting copyright to a two-day period effectuated abandonment after that time); see also National Comics Publications, Inc. v. Fawcett Publications, Inc., 191 F.2d 594, 598 (2d Cir. 1951) (asserting in dicta that copyright's owner may abandon it "by some overt act which manifests his purpose to surrender his rights in the 'work,' and to allow the public to copy it"), modified, 198 F.2d 927 (2d Cir. 1952).
. U.S. Dept. of Commerce, Information Infrastructure Task Force, Working Group on Intellectual Property Rights, Intellectual Property and the National Information Infrastructure: The Report on the Working Group on Intellectual Property Rights 16 (1995) ("Those creators who wish to dedicate their works to the public domain may, of course, do so notwithstanding the availability of protections under the Copyright Act."); Robert A. Kreiss, Abandoning Copyrights to Try to Cut Off Termination Rights, 58 Mo. L. Rev. 85, 92 (1993) ("[A]bandonment of copyright can be done explicitly or implicitly.") (footnotes omitted); Henry H. Perritt, Jr., Property and Innovation in the Global Information Infrastructure, 1996 U. Chi. Legal F. 261, 292 n.119 ("Copyright owners may relinquish their property interest and put their works in the public domain."); see also 2 Goldstein, supra note 217, § 9.3 (describing how abandonment functions as a defense to copyright infringement); 4 Nimmer & Nimmer, § 13.06 (same).
. Notwithstanding that consensus, it bears noting that the Copyright Act nowhere specifically permits abandonment and perhaps even impliedly disavows it. See Kreiss, supra note 269, at 98. Professor Kreiss offers five powerful arguments, however, why no one can reasonably take the Act to forbid abandonment, see id. at 98-101, 117-18, one of which proves especially relevant to the present argument for allowing an exit from copyright: "[P]ersonal freedom, including the freedom to control or dispose of one's own property . . . underlies the notion that an author can abandon his copyrights." Id. at 100.
. Compare Metro-Goldwyn-Mayer, Inc. v. Showcase Atlanta Coop. Prod., Inc., 1981 Copyright L. Dec. (CCH) ¶ 25,314 (N.D. Ga. 1981) (rejecting concept of "limited abandonment" of copyright), Paramount Pictures Corp. v. Carol Publ'g Group, 11 F. Supp. 2d 329, 337 (S.D.N.Y. 1998) (quoting Showcase), Richard Feiner & Co. v. H.R.I. Indus., 10 F. Supp. 2d 310, 313 (S.D.N.Y. 1998) (quoting Showcase and Nimmer & Nimmer), and 4 Nimmer & Nimmer, supra note 11, § 13.06, at 13-274 ("The law does not recognize a limited abandonment, such as an abandonment only in a particular medium, or only as regards a given mode of presentation."), with Micro Star v. Formgen, 154 F.3d 1107, 1114 (9th Cir 1998) (suggesting that copyright rights may be partially abandoned), 2 Goldstein, supra note 217, § 9.3, at 9:12-1 (citing Micro Star), and Kreiss, supra note 269, at 96 (arguing for allowing abandonment of select copyright rights and for select periods). See also id. at 96 n.44 ("The court in Showcase rejected the idea of a limited abandonment because no authority had been cited for such a proposition. Such a 'reason' is really no reason at all.").
. See 17 U.S.C. § 203 (1994) (providing that any grant, other than by will, of a transfer or license made on or after January 1, 1978 of a copyrighted work not made for hire may be terminated by the author upon certain conditions notwithstanding any agreement to the contrary); id. § 304(c) (providing much the same with regard to any grant of a transfers or license of a renewal of copyright or any right under it executed prior to January 1, 1978). In effect, these provisions make it impossible for an author to give an enforceable promise to not terminate a transfer or license of copyright.
. Professor Kreiss gives that question extensive consideration, see Kreiss, supra note 269, at 111-23, and answers it with a qualified, "Yes." But at the same time he defends abandonment in general as a matter of personal freedom and autonomy, see id. at 100-01, principles with which the Act's termination provisions, embodying as they do a paternalistic restraint on authors' freedom of contract, directly conflict. Kreiss admits that abandonment of contingent reversionary rights does not conflict with the literal language of the Act, see id. at 113, but defends his interpretation on grounds that in particular circumstances the termination provisions protect authors from the hazards of imbalanced negotiations with copyright grantees, see id. at 114- 15. Policy considerations in fact argue against extending termination's scope, however. Firstly, whatever the benefits of termination in traditional contexts, it generally proves useless to authors considering abandonment. The public to whom such authors "grant" their works does not, after all, enjoy overwhelming bargaining power. Kreiss would, in all fairness, bar only abandonment of contingent reversionary rights effectuated under bargaining pressure and in conjunction with a grant of present rights. See id. at 121-23. But even that goes too far because, secondly and more fundamentally, termination in fact hurts most authors by decreasing the present value of their grants and erodes their bargaining power by denying them the right to credibly offer non- terminable grants. Kreiss apparently has a zero-sum view of bargains between authors and grantees: "If a copyright grantee receives a grant and also negotiates for the abandonment of other copyrights, one can presume that the abandonment is designed for the benefit of the grantee." Id. at 123. But we can also presume that such an abandonment benefits the grantor! Termination makes no economic sense even in traditional contexts, much less in the context of abandonment. We should thus as a matter of policy strongly disfavor it.
. On the arguments above, supra note 273, a copyright owner should be able to effectuate complete, immediate, and permanent abandonment--even prior to the vesting of any contingent reversionary rights--by placing into the public domain both all copyright rights and any contingent reversionary rights.
. To speak more broadly, copyright owners might abandon copyright to avoid not only preemption but also the doctrine of copyright misuse. See Open Discussion, supra note 11, at 839-45 (analyzing abandonment as a strategy for avoiding claims of copyright misuse); Lemley, supra note 2, at 157.
. See supra Part IV.A.
. See Lemley, supra note 2, at 157 ("[A] plaintiff who truly does 'opt out' of copyright in favor of contract presumably would not be bound by the limits of the copyright misuse defense.").
. See PRC Realty Sys., Inc. v. National Ass'n of Realtors, No. 91- 1125, 1992 U.S. App. LEXIS 18017, at *38 (4th Cir. Aug. 4, 1992) ("[T]hough the aspects of the district court's opinion allowing for damages for breach of contract are affirmed, any order allowing for an award for violation of copyright, or continued enforcement of the licensing agreement through injunction, must be reversed."); Tamburo v. Calvin, No. 94 C 5206, 1995 U.S. Dist. LEXIS 3399, at *15-19 (N.D. Ill. Mar. 17, 1995) (granting motion to dismiss copyright infringement claim on grounds of misuse but granting leave to amend contract and other claims). It remains a bit uncertain exactly how broad an impact the court in PRC Realty Systems intended copyright misuse to have on the contract in question. The passage quoted above suggests that damages based solely on breach of contract would remain available even prospectively. But the court also claimed, more broadly, "The licensing agreement between parties . . . which now controls interests and obligations concerning copyrighted material, following PRC's copyright filing, is invalid as an instance of misuse of copyright." PRC Realty Sys., 1992 U.S. App. LEXIS 18017, at *37-38. Principles of law and policy support the narrower holding. Firstly, a mere copyright filing cannot suffice to distinguish the two stages of the contract. Copyright originates at the fixation of an expressive work, 17 U.S.C. § 102(a) (1994), a question of law that the court apparently misunderstood. See PRC Realty Sys., 1992 U.S. App. LEXIS 18017, at *36-37 (claiming that agreements made before filing did not involve or concern copyrighted material). Secondly, since the court affirmed damages for breach of contract that arose absent the threat of copyright infringement, it should affirm similar damages arising after and as long as the misuse defense keeps such threats in check.
Other courts that left undisturbed contracts that combined with copyrights to give rise to a misuse defense did so for less probative reasons. See Lasercomb America, Inc. v. Reynolds, 911 F.2d 970 (4th Cir. 1990) (neglecting to rule on contract between plaintiff and third party); Practice Management Info. Corp. v. American Med. Ass'n, 121 F. 3d 516 (9th Cir. 1997) (same); Alcatel USA, Inc. v. DGI Techs., Inc. 166 F.3d 772, 792-94 (5th Cir. 1999) (same); Qad., Inc. v. ALN Assoc., Inc. 770 F. Supp. 1261, 1266 n.13 (N.D. Ill. 1991) (granting summary judgment on copyright misuse claim but leaving contract claim unresolved), aff'd, 974 F.2d 834 (7th Cir. 1992).
. See Bell, supra note 3, at 610-11 (saying of the claim that the implied conflicts preemption might void some copyright licenses, "A paucity of relevant case law and the subtleties inherent to Supremacy Clause preemption leave the supposition unresolved . . . ." (footnotes omitted)).
. See 1 Nimmer & Nimmer, supra note 11, § 1.01[B], at 1-8 (explaining that courts have had little need to refer to the Supremacy Clause because they "may simply turn to the explicit statutory language"); 3 Goldstein, supra note 217, § 15.3.3, at 15:35-36 ("Arguably, section 301 has entirely displaced constitutional preemption doctrine under the supremacy clause in cases involving state protection of copyright subject matter.").
. The Court's discussion in Goldstein v. California, 412 U.S. 546, 567-71(1973), of Supremacy Clause preemption proves unhelpful, as that case concerned solely a California criminal statute and not a common law claim.
. But see Fantastic Fakes, Inc. v. Pickwick Int'l, Inc., 661 F.2d 479, 483 (5th Cir. 1981) (dictum) ("It is possible to hypothesize situations where application of particular state rules of [contract] construction would so alter rights granted by the copyright statutes as to invade the scope of copyright or violate its policies.").
. See Lemley, supra note 2, at 145 (noting that courts have refused to explore implied conflicts preemption because it "seems like an awfully big hammer").
. See supra Part III.A.
. See supra Part III.B.1.
. See supra Part III.D.
. 17 U.S.C. § 301(a) (1994).
. Cf. Bell, supra note 3, at 616-17 (proposing an amendment to § 301 designed to effect a similar reform with regard solely to contract claims).
. See supra Part III.B.
. See supra Parts III.A, C.
. See supra Part III.E.
. Professor Lemley has correctly observed that copyright owners would prefer to avoid choosing between statutory and common law rights. See Lemley, supra note 11, at 1274 (noting that, rather than facing an all-or-nothing choice like the one between trade secret and patent protection, copyright owners "would prefer to 'pick and choose' only the copyright rules that benefit them"). But cf. Lemley, supra note 2, at 150 (suggesting that proposed U.C.C. Article 2B might obviate the distinction between statutory and common law rights). A court that has gone so far as to invoke § 301 preemption, however, will already have decided to withdraw one half of that double benefit. The proposed § 301(g) would at least then allow a copyright owner to choose which benefit remains.
. See supra Part IV.A.
. See Bell, supra note 3, at 611-13 (discussing implied conflicts preemption of contracts regulating access to copyrighted works).
. See supra text accompanying notes 266-73.
. See 2 Goldstein, supra note 217, § 9.6; 4 Nimmer & Nimmer, supra note 11, § 13.09[A].
. See 2 Goldstein, supra note 217, § 9.6, at 9:34; 4 Nimmer & Nimmer, supra note 11, § 13.09[A], at 13-284.
. Compare Lasercomb Am., Inc. v. Reynolds, 911 F.2d 970, 978 (4th Cir. 1990) ("The question is not whether the copyright is being used in a manner violative of antitrust law . . . but whether the copyright is being used in a manner violative of the public policy embodied in the grant of a copyright."), Practice Management Info. Corp. v. American Med. Ass'n, 121 F. 3d 516, 521 (9th Cir. 1997) ("[A] defendant in a copyright infringement suit need not prove an antitrust violation to prevail on a copyright misuse defense."), amended by 133 F.3d 1140 (9th Cir. 1998), and Alcatel USA, Inc. v. DGI Techs., Inc. 166 F.3d 772, 792-94 (5th Cir. 1999) (reversing on grounds of copyright misuse injunctive relief for copyright infringement despite also affirming dismissal of antitrust claim), with Columbia Broad. Sys., Inc. v. American Soc'y of Composers, Authors & Publishers, 562 F.2d 130, 141 n.29 (2d Cir. 1977) (finding misuse on grounds coextensive with antitrust violation), rev'd on other grounds, 441 U.S. 1 (1978), Saturday Evening Post Co. v. Rumbleseat Press, Inc., 816 F.2d 1191, 1200 (7th Cir. 1987) ("We hold that a no-contest clause in a copyright licensing agreement is valid unless shown to violate antitrust law."), and BellSouth Adver. & Publ'g Corp. v. Donnelley Info. Publ'g, Inc., 933 F.2d 952, 961 (11th Cir. 1991) (declining to find copyright misuse absent antitrust violation), vacated and reh'g en banc granted, 977 F.2d 1435 (11th Cir. 1992), and rev'd on other grounds, 999 F.2d 1436 (11th Cir. 1993). See also Coleman v. ESPN, Inc., 764 F. Supp. 290, 295 (S.D.N.Y. 1991) (allowing defendant to proceed to trial on copyright misuse defense based on unreasonable restraint of trade); Reliability Research Inc. v. Computer Assoc. Int'l, Inc., 793 F. Supp. 68, 69 (E.D.N.Y. 1992) (declining to strike copyright misuse defense on grounds its availability absent antitrust offense remains "an open and disputed question of law"); 2 Goldstein, supra note 217, § 9.6.1, at 9:38-1 through 9:40 (discussing availability of defense absent showing of antitrust violation); 4 Nimmer & Nimmer, supra note 11, § 13.09[A], at 13-292 (same).
. See Vogue Ring Creations, Inc. v. Hardman, 410 F. Supp. 609, 615-16 (D.R.I. 1976) (stating that material misstatements in copyright registration could give rise to copyright misuse) (dictum); Broadcast Music, Inc. v. Moor-Law, Inc., 527 F. Supp. 758, 772 n.24 (D. Del. 1981) ("Copyright misuse and antitrust analysis in this area are not necessarily coextensive." (dictum)), aff'd, 691 F.2d 490 (3d Cir. 1982); National Cable TV Assoc., Inc. v. Broadcast Music, Inc., 772 F. Supp. 614, 652 (D.D.C. 1991) (claiming that violation of antitrust laws not a prerequisite to showing copyright misuse) (dictum); Budish v. Gordon, 784 F. Supp. 1320, 1336-37 (N.D. Ohio 1992) (suggesting same) (dictum); Broadcast Music Inc. v. Hampton Beach Casino Ballroom Inc., Civ. No. 94-248-B, 1995 U.S. Dist. LEXIS 13103, at *16-17 (D.N.H. Aug. 30, 1995) (claiming that violation of antitrust laws not a prerequisite to showing copyright misuse) (dictum); In re Independent Serv. Org. Antitrust Litig., 85 F. Supp. 2d 1130, 1175-76 (D. Kan. 2000) (same) (dictum); Religious Tech. Ctr. v. Lerma, Civ. No. 95-1107-A, 1996 U.S. Dist. LEXIS 15454, at *33-34 (E.D. Va. Oct. 4, 1996) (suggesting same) (dictum); see also Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1547 (11th Cir. 1996) (suggesting in dictum that a finding of copyright misuse might be appropriate to ensure compatibility of computer software).
The Seventh Circuit seems particularly conflicted over the legitimacy of a copyright misuse defense unsupported by an antitrust claim. Notwithstanding the derogation of such claims in Saturday Evening Post Co., 816 F.2d at 1200, the circuit's district courts have embraced them. See Qad., Inc. v. ALN Associates, Inc. 770 F. Supp. 1261, 1266 n.13 (N.D. Ill. 1991) (granting summary judgment to defendant alleging copyright misuse and violation of antitrust law, and thereby denying relief on copyright infringement claim, but expressly basing opinion on finding that misuse violated public policy underlying copyright law), aff'd on other grounds, 974 F.2d 834 (7th Cir. 1992); Tamburo v. Calvin, No. 94 C 5206, 1995 U.S. Dist. LEXIS 3399, at *15-16 (N.D. Ill. Mar. 17, 1995) (granting motion to dismiss copyright infringement claim on grounds of misuse despite absence of antitrust claims but granting leave to amend contract and other claims). Such independent thinking appears to have inspired a reminder, see Reed-Union Corp. v. Turtle Wax, Inc., 77 F.3d 909, 913 (7th Cir. 1996) (stating that availability of any sort of copyright misuse defense remains "an open issue in this court"), rehearing en banc denied, 37 U.S.P.Q.2d (BNA) 1718 (1996). Curiously, the Seventh Circuit also generated one of the earliest and broadest statements about copyright misuse. See F.E.L. Publications, Ltd. v. Catholic Bishop, 214 U.S.P.Q. (BNA) 409, 413 n.9 (7th Cir. 1982) ("[I]t is copyright misuse to exact a fee for the use of a musical work which is already in the public domain." (dictum)).
. See Lasercomb America, Inc., 911 F.2d at 979 n.22 ("This holding, of course, is not an invalidation of Lasercomb's copyright. Lasercomb is free to bring a suit for infringement once it has purged itself of the misuse."); Practice Management Info. Corp., 121 F.3d at 520 n.9 ("Copyright misuse does not invalidate a copyright, but precludes its enforcement during the period of misuse."); Alcatel USA, Inc., 166 F.3d at 793 n.81: ("A finding of misuse does not . . . invalidate plaintiff's copyright."); Qad. Inc., 770 F. Supp. at 1271 n.23 ("It may be possible for qad to purge itself of copyright misuse and then defend its copyright in another cause of action . . . ."); Tamburo, 1995 U.S. Dist. LEXIS 3399, at *22 ("Under Illinois law, the valid parts of a partially unlawful contract are enforceable.").
. See supra note 278.
. See supra Part IV.B.
. At least insofar as allowed by countervailing principles of estoppel, see 4 Nimmer & Nimmer, supra note 11, § 13.07, at 13-275 to 13-277 (describing scope and effect of estoppel defense); 2 Goldstein, supra note 217, at § 9.5.2 (same), or laches, see 3 Nimmer & Nimmer, supra note 11, § 12.06 (describing scope and effect of laches defense); 2 Goldstein, supra note 217, § 9.5.1 (same). See also 2 Goldstein, supra note 217, § 9.5 (describing relationship between laches and estoppel defenses).
. See supra Part IV.A.
. See supra text accompanying notes 232-35.
. See supra Part III.E (describing and explaining the expansion of the Copyright Act's scope, rights, and remedies).
. See supra Part IV.B.
. See supra Part IV.C.
. Assuming that the term ever does expire. As illustrated in Figure 1, supra Part III.E.1, the general term of copyright under U.S. law has in recent decades been expanding so quickly as to afford effectively permanent protection.
. See Dane S. Ciolino, Reconsidering Restitution In Copyright, 48 Emory L.J. 1, 44 (1999) (observing that copyright law suffers from fuzzy boundaries in part due to lax notice requirements); Perritt, supra note 269, at 292 n.119 (observing that "it was easier to reach a public-domain conclusion [when] the author of a work established or maintained a statutory copyright only by complying with certain formalities, such as including a copyright notice on any published versions of the work"); Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and its Predecessors, supra note 77, at 1612 (praising on grounds that it "facilitates identification of those works that are not in the public domain and cannot be used without purchase of a copyright license, and also facilitates identification of the works' owners," the former requirement that publicly distributed works include a copyright notice).
. The copyright notice requirement was largely struck from the Copyright Act by the Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853 (1988) (effective March 1, 1989).
. See 17 U.S.C. § 408(a) (1994) ("[R]egistration is not a condition of copyright protection."). But see id. § 411(a) (providing that copyright owner cannot in general bring suit for infringement before having at least applied for registration); id. § 412 (limiting some remedies in some cases to registered works).
. See id. § 401(a) (providing merely that such notice "may be placed on publicly distributed copies" of a work).
. But see id. §§ 401(d), 402(d) (providing that attaching notice of copyright on published works will generally bar a defense of innocent infringement in mitigation of actual or statutory damages); id. § 405(b) (describing limits to liability of innocent infringer of a copyrighted work published before March 1, 1989 without an attached copyright notice).
. Granted, an uncopyright notice might lead to confusion if attached to a work that reenters copyright due to the vesting of an contingent reversionary interest, see supra Part IV.B., or due to the curing of copyright misuse, see supra Part IV.C. That argues against using uncopyright notices little more than the marginal problem of expired copyrights argues against using copyright notices, however, and good faith reliance on an erroneous uncopyright notice might go towards mitigating the penalties for infringement. See 4 Nimmer & Nimmer, supra note 11, § 13.08, at 13-279 to 13-282 (describing scope and effect of innocent infringement defense); see also id. § 12.06, at 12-125 to 12-126 (describing how innocent infringer might have laches defense).
. A web page designer might, for instance, create the appearance of a double-struck character by putting one character as a transparent image in front of the other, text character. For that matter, of course, a designer could simply create an image of an anti-copyright character as a whole and link to it as necessary. See generally the various standards defined and published by the World Wide Web Consortium, <www.w3.org>.
. 17 U.S.C. § 402(b)(1) (1994).
. That many uncopyrighted works will come with common law and technological protections that require payment prior to access or use of the works makes use of a monetary symbol all the more (critics would no doubt say "all too") appropriate.
. "Uncopyright" would of course signify, per the Old English roots of its prefix, something not copyrighted. "Anticopyright" offers an acceptable substitute, though a purist might object to its mixture of the Greek prefix "anti-", "copy" from the Medieval Latin, and "right" originating in Old English. Popular usage, which should ultimately prevail over pedantry in such matters, has yet to settle on a uniform noun. Compare Jessica Litman, Reforming Information Law in Copyright's Image, 22 U. Dayton L. Rev. 587 passim (1997) (using "un-copyright"), and David A. Rice, Sega and Beyond: A Beacon for Fair Use Analysis . . . at Least as Far as It Goes, 19 U. Dayton L. Rev. 1131, 1199 (1994) ("uncopyright"), with Ralph Oman, Comments at Franklin Pierce Law Center's Seventh Biennial Intellectual Property System Major Problems Conference: Digital Technology and Copyright: A Threat Or A Promise? 39 J.L. & Tech. 291, (1999) ("anti-copyright"), Robert C. Cumbow, Cyberspace Must Exceed Its Grasp, or What's a Metaphor? Tropes, Trips and Stumbles on the Info Highway, 20 Seattle Univ. L. Rev. 665, 666 (1997) ("anticopyright"), Anthony L. Clapes, Confessions of an Amicus Curiae: Technophobia, Law, and Creativity in the Digital Arts, 19 U. Dayton L. Rev. 903, 925 (1994) ("anti- copyright"), Gordon, supra note 81, at 1404 n.273 ("anticopyright"), and Pamela Samuelson, Creating a New Kind of Intellectual Property: Applying the Lessons of the Chip Law to Computer Programs, 70 Minn. L. Rev. 471, 484 (1985) ("anti-copyright"). No court or commentator appears to have made an adjective out of "anticopyright" or "anti-copyright," however, exclusively preferring "uncopyrightable," "uncopyrighted," and so forth. See, e.g., Feist Publications v. Rural Tel. Serv., 499 U.S. 340, 345 passim (1991) (using "uncopyrightable"). One might consider "ex-copyright" another suitable term, though its roots of suggest a narrow meaning-"out of or from copyright"-peculiarly suited to works that have fallen out of copyright protection.
. See supra Part III.C.
. The difficulty of enforcing copyrights on the Internet has already encouraged exploration of such methods. See, e.g., Eric Schlachter, The Intellectual Property Renaissance in Cyberspace: Why Copyright Law Could Be Unimportant on the Internet, 12 Berkeley Tech. L.J. 15 (1997) (describing and evaluating methods other than copyright law to encourage the production and dissemination of expressive works).
. True to its roots and its meaning everywhere but in contemporary mass U.S. media, "liberal" here means not "left-wing" but rather "free."
. In the case of legal persons such as corporations.
. See generally Richard A. Epstein, Simple Rules for a Complex World (1995).
. For descriptions of spontaneous orders, see Barnett, supra note 15, at 44-62; Friedrich A. Hayek, I Law, Legislation, and Liberty 35-54 (1973).
. See, e.g., Eli M. Noam, Beyond Auctions: Open Spectrum Access, in Regulators' Revenge: The Future of Telecommunications Deregulation 113 (Tom W. Bell & Solveig Singleton eds., 1998).
. See, e.g., David R. Hughes & Dewayne Hendricks, Spread-Spectrum Radio, Scientific American, Apr. 1998, at 94.
. See David G. Post, Anarchy, State, and the Internet: An Essay on Law-Making in Cyberspace, 1995 J. Online L. art. 3, ¶¶ 25-31 (June 1995) <http://warthog.cc.wm.edu/law/publications/jol/post.html> (discussing how network bottlenecks facilitate control by third parties).