* (c) 2003 R. Anthony Reese. Assistant Professor, School of Law, The University of Texas at Austin. B.A., Yale University; J.D., Stanford Law School. Thanks to the organizers and the participants in the Boston College Law Review Symposium on Intellectual Property, E-Commerce, and the Internet, particularly Wendy Gordon, Stacey Dogan, Justin Hughes, Michael Meurer, Molly Van Houweling, Joe Liu, Fred Yen, and Jonathan Zittrain, for helpful comments. I thank Paul Goldstein, Douglas Laycock, and Christopher Leslie for comments on earlier drafts. I thank Caroline Frick and Nancy Cho for helpful discussions on the topic. I thank Beth Youngdale of the Tarlton Law Library and Bert Greene for research assistance.
1 “[T]he [Copyright] Act creates a balance between the artist’s right to control the work during the term of the copyright protection and the public’s need for access to creative works.” Stewart v. Abend, 495 U.S. 207, 228 (1990).
2 In copyright terms, “copies” are “material objects . . . in which a work is fixed by any method . . . and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. � 101 (2000). Technically, works can be embodied in both copies and phonorecords. “Phonorecords” are essentially a subset of what are colloquially termed “copies”; a phonorecord is a material object in which sounds (rather than, for example, images or text) are fixed. See id. � 101. Thus, an audio cassette, compact disc, or LP are “phonorecords.” For convenience in this Article, I will generally use the term “copy” to include both copies and phonorecords.
3 For example, Congress has prohibited the rental of phonorecords of sound recordings and copies of computer software out of concerns about the ease of digital piracy. See infra notes 138–140 and accompanying text. In addition, Congress granted sound recording copyright owners a limited right to control public performances of their works by means of digital audio transmission, but not by other means, because of concerns that such digital transmissions posed a significantly greater threat to copyright owner incentives than did non-digital performances. Digital Performance Right in Sound Recordings Act of 1995, Pub. L. No. 104-39, 109 Stat. 336 (codified at 17 U.S.C. � 106(6)).
4 See Act of May 31, 1790, ch. 15, � 1, 1 Stat. 124.
5 Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 350–51 (1908).
6 17 U.S.C. � 41 (1909) (amended 1947) (current version at 17 U.S.C. � 109(a) (2002) (enacted 1976)).
7 This doctrine is not unique to the United States, though the specific contours of the copy owner’s rights vary from country to country. In civil law jurisprudence, the doctrine is generally known as “exhaustion”—the copyright owner’s initial authorized transfer of a copy of the work exhausts the owner’s right to control the distribution of that copy.
8 17 U.S.C. � 106(3). Technically, the right is to distribute both copies and phonorecords of the work.
9 Id. � 109(a).
10 In a limited exception to the first sale doctrine, copyright law bars the rental of copies of computer programs and phonorecords of sound recordings without the copyright owner’s consent. Id. � 109(b). See infra notes 138–140 and accompanying text.
11 Info. Infrastructure Task Force, Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights 92–94 (1995) [hereinafter White Paper].
12 Id.
13 See, e.g., Keith Kupferschmid, Lost in Cyberspace: The Digital Demise of the First-Sale Doctrine, 16 J. Marshall J. Computer & Info. L. 825, 844–48 (1998); James V. Mahon, A Commentary on Proposals for Copyright Protection on the National Information Infrastructure, 22 Rutgers Computer & Tech. L.J. 233, 262–63 (1996); Digital Future Coalition, Summary of Issues and Proposals to Amend the “NII Copyright Protection Act,” at http://www.arl.org/info/ frn/copy/summary.html (May 8, 1996).
14 The Digital Era Copyright Enhancement Act, H.R. 3048, 105th Cong. (1997) (proposed 17 U.S.C. � 109(f)).
15 See, e.g., Digital Choice and Freedom Act of 2002, H.R. 5522, 107th Cong. (proposed 17 U.S.C. � 109(f)).
16 Pub. L. No. 105–304, 112 Stat. 2860 (1998).
17 See 17 U.S.C. �� 1201–1205 (2000).
18 112 Stat. at 2876. In addition, the agencies were to report on the effect of the anticircumvention provisions and e-commerce on section 117 of the 1976 Copyright Act, which allows owners of copies of computer programs to reproduce those programs for back-up and other purposes. Id. The Department of Commerce report was issued in 2001. Nat’l Telecomm. & Info. Admin., U.S. Dep’t of Commerce, Report to Congress: Study Examining 17 U.S.C. Sections 109 and 117 Pursuant to Section 104 of the Digital Millennium Copyright Act (2001), available at http://www.ntia.doc.gov /ntiahome/occ/dmca2001/104gdmca.htm.
19 U.S. Copyright Office, Library of Cong., DMCA Section 104 Report (2001), available at http://www.copyright.gov/reports/studies/dmca/dmca_study.html (last modified Jan. 8, 2003).
20 Id. at 74 (“The first sale doctrine does not guarantee the existence of a secondary market or a certain price for copies of copyrighted works.”).
21 See id. at 78–101. Libraries had expressed concerns about the impact of the DMCA’s anticircumvention provisions and electronic commerce generally on interlibrary loan, off-site accessibility, archiving and preservation, the availability of works, and the use of donated works. Id. at 102. With respect to those specific concerns, the report concluded that virtually all of the libraries’ concerns stemmed from the terms of licensing agreements between libraries and copyright owners and were therefore beyond the scope of Congress’s mandate for the report. See id. at 102–05. The conclusion seems somewhat odd because the Copyright Office was directed to study the impact of “electronic commerce” on the first sale doctrine, and “electronic commerce” would seem to include the dissemination of works in digital format, particularly for online use, pursuant to agreements often embodied in digital, online form.
22 Id. at xvii, 76 (discussing practice of tethering copies to particular devices); see also id. at xx (noting no convincing evidence of present-day problems but noting also that “[t]he time may come when Congress may wish to address these concerns should they materialize”); id. at xxi (noting that if the market does not respond to library concerns over the impact of electronic commerce on the first sale doctrine, “these issues may require further consideration at some point in the future”).
23 See Nat’l Telecomm. & Info. Admin., supra note 18 (concluding that NTIA believes legislative recommendations would be premature “at this time,” but noting that “several areas . . . warrant further Congressional inquiry”).
24 Since 1978, federal copyright protection has attached to every original work of authorship fixed in a tangible medium of expression automatically upon fixation. 17 U.S.C. �� 102(a), 302(a) (2000). As a result, an enormous amount of material is protected by copyright but never intended for distribution to, or actually distributed to, the public. This material includes correspondence, diaries, sketchbooks, and snapshots. The focus of this Article is on copyrighted works actually disseminated to the public. In addition, my focus is on works distributed to the public at large, and not specialized or customized works distributed only to one user or a small group of users.
25 “In 2001, $10.3 billion was spent in the United States to buy copies of films for home use . . . .” Rick Lyman, In Revolt in the Den: DVD Has the VCR Headed to the Attic, N.Y. Times, Aug. 26, 2002, at A1. For a typical film, the initial theatrical release accounts for about twenty percent of the producer’s total revenue, while “home entertainment” accounts for more than forty percent. Id.
Television programming is perhaps the major category of copyrighted works widely disseminated to the public in a form other than copies, though in recent years even some TV programming has been made available for sale on video or DVD. Works of fine art are generally disseminated to the public by public exhibition of the original copy of the work, though in many instances reproductions of such works in copies are distributed to the public.
26 See Julie E. Cohen, A Right to Read Anonymously: A Closer Look at “Copyright Management” in Cyberspace, 28 Conn. L. Rev. 981 (1996); Julie E. Cohen, Some Reflections on Copyright Management Systems and Laws Designed to Protect Them, 12 Berkeley Tech. L.J. 161, 183–87 (1997); Joseph P. Liu, Owning Digital Copies: Copyright Law and the Incidents of Copy Ownership, 42 Wm. & Mary L. Rev. 1245, 1328–32 (2001).
27 210 U.S. 339, 350–51 (1908).
28 Attempts by copyright owners to control the price that retailers charge for copies of their works could constitute vertical price fixing in violation of antitrust laws. See, e.g., Dr. Miles Med. Co. v. John D. Park & Sons Co., 220 U.S. 373, 400, 408 (1911); Claudia H. Deutsch, Suit Settled Over Pricing of Music CD’s at 3 Chains, N.Y. Times, Oct. 1, 2002, at C1; Federal Trade Commission, Press Release, Record Companies Settle FTC Charges of Restraining Competition in CD Music Market (May 10, 2000), at http://www.ftc.gov/opa/ 2000/05/cdpres.htm.
29 Again, in the absence of a first sale doctrine, antitrust principles that strongly disfavor resale-price-maintenance devices might similarly prevent copyright owner control over retailers’ sale prices and achieve similar retail price competition. See, e.g., Dr. Miles Med. Co., 220 U.S. at 373.
30 See Jane Birnbaum, Without a Scratch, Used CD’s Rise Again, N.Y. Times, Sept. 6, 1993, at A1, available at 1993 WL 2108723 (“Used CD’s . . . often have a price tag of $2 to $8 each, compared with $11 to $16 for new ones.”); Ed Christman, As Used-CD Biz Grows, Chains Get In On Act, Billboard, July 10, 1999, at 1, 92 (noting that used CDs are typically priced from $5.99 to $8.99). In the case of works that are out of print or otherwise unavailable from the copyright owner, the price of a copy on the secondary market might be higher than the original sale price.
31 See Ed Christman, Wherehouse Quietly Debuts New Store Concept, Billboard, Sept. 30, 2000, at 76 (noting that sales of used CDs may amount to ten percent of sales for the Wherehouse record-store chain).
32 David D. Kirkpatrick, Online Sales of Used Books Draw Protest, N.Y. Times, Apr. 10, 2002, at C1.
33 Nora Macaluso, The Amazon Earnings Speculation Story, E-Commerce Times, Jan. 21, 2002, at www.ecommercetimes.com/perl/story/15864.html; see also Steven Zeitchik, Used Booksellers Discover the Joys of Amazon, Publishers Wkly., July 30, 2001 (reporting that Amazon announced in July 2001 that eleven percent of total book, music, and video orders were for used goods).
34 Nat’l Assoc. of Recording Merch., 2000 Annual Survey Results 3 (2001).
35 See Christman, supra note 30, at 92 (“‘We have a customer who is on the cutting edge and interested in a vast array of goods,’ says [Mike] Dreese [CEO of a 19-unit, Boston-based record-store chain]. ‘The used CDs add value to new product, because they know that they can get some of what they spent [on those titles] back.’”); Ed Christman, Both Retailer, Label Claims Backed By Used-CD Survey, Billboard, Oct. 2, 1993, at 4, 112 (noting that twenty-five percent of survey respondents saw “potential to sell unwanted CDs as an insurance policy that allows them to buy more CDs”).
Transaction costs in making the resale must also be included to determine the final effective price. Many college and graduate students, of course, rely on this reduction in total purchase price in buying texts.
36 Rental markets also provide access to works to those who could afford to buy a copy but simply do not wish to pay any price to own a copy, as opposed to having time-limited access to the work. Thus, some people may simply not wish to own a videocassette or DVD of a film that they anticipate only watching once or twice, but would prefer to rent a copy and return it after viewing.
37 Audiobooks are also available for rental rather than for purchase. See, e.g., K. Oanh Ha, Success Story is Worth Listening To, San Jose Mercury News, Nov. 9, 2002, at 1C; Audio Publishers Association, Press Release, Audio Publishers Association Announces Results of Consumer Study (May 31, 2001), at http://www.audiopub.org/fass_pr.html (survey shows that six percent of audiobooks listened to are rented).
38 Not all countries allow free rental of copies of copyrighted works (or works that would be protected by copyright in the United States and are protected by so-called “neighboring rights” abroad). The European Union has directed member states to grant copyright owners a right to control rentals that is not exhausted by the sale of the copy. See Council Directive 92/100/EEC, art. 1, 1992 O.J. (L 346) 61. Even before that directive, in many European countries the sale of a copy apparently did not exhaust the copyright owner’s right to control, or at least receive compensation for, rentals of the copy, at least for films. See Case 158/86, Warner Bros. v. Christiansen, 1988 E.C.R. 2605, [1990] 3 C.M.L.R. 684, 690 (1988) (Opinion of the Advocate General).
39 Renting a video may be a more affordable option for multiple viewers. Families or groups of friends who wish to see a motion picture in a cinema will generally need to buy a ticket for each person, whereas the single price for the video rental will allow the entire family or group of friends to view the film (in private), thus allowing the cost of the rental to be spread over the entire group, making the per-capita price of the rental much lower than the per-capita ticket price.
40 Carl Shapiro & Hal R. Varian, Information Rules 95 (1999) (noting that for-profit “circulating libraries” survived into the 1950s).
41 This feature of U.S. copyright law’s first sale doctrine is also not universal. “A handful of countries, mainly in Europe, have adopted one or another form of public lending right aimed at giving authors, and in some cases publishers, a right of remuneration for library borrowings even though no money changes hands at the library counter.” Paul Goldstein, International Copyright: Principles, Law, and Practice 258 (2001). The European Union has directed its member states to adopt such a lending right. See Council Directive 92/100/EEC, supra note 38, arts. 1, 5.
42 Indeed, since the marginal cost of using a library’s copy of a work is basically zero, economic theory suggests that library availability of a work might lead users to make more use of the work than if they had to pay a lump sum to acquire a copy or a pay-per-use charge such as a rental fee.
Of course, a library patron faces nonmonetary costs in borrowing the copy, such as waiting for the library to acquire a copy, waiting for the library’s copy to be available if it has been borrowed by another patron, being able to retain the copy only for a limited time, and possessing the copy subject to a recall by the library. Many patrons, though, may be willing and able to bear those nonmonetary costs while not being able or willing to pay the monetary price for a new or used copy of the work.
43 A similar situation might arise for a consumer who wished to listen to a particular recorded song a single time. For example, the consumer might want to hear the song’s lyrics to refresh her memory of them, but she might be unwilling to buy a complete CD or cassette simply to hear one of the songs on that recording one or two times. Borrowing a phonorecord of the song from the library gives the patron access to the song that she might otherwise forego if she had to buy a CD to get access. Another example might involve periodical back issues. A consumer may be willing to buy every issue of a daily newspaper or monthly magazine, but not to pay to store all of those issues for future reference.
44 In the absence of the first sale doctrine, even a library that merely makes a copy available in its collection might require permission from the owner of the distribution right in the work. See Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199, 201 (4th Cir. 1997) (holding that making a copy of a work available in a library collection constituted a distribution of a copy of the work to the public).
Before the enactment of the 1976 Copyright Act, the first sale doctrine was apparently unnecessary to allow the activities of libraries because, until 1978, the copyright owner did not have the right to control distribution of copies to the public by loan. Instead, the copyright owner’s control was limited to the exclusive right to “vend” the work, and libraries loan, rather than vend, copies. See, e.g., Act of May 31, 1790, ch. 15, � 1, 1 Stat. 124.
45 An additional potential negative effect of the first sale doctrine, though not one directly related to affordability or availability, is that it may steer investment in copyrighted works to the production of works for which there will not be significant demand in the secondary market and that will therefore face less price competition from that market. The first sale doctrine may make copyright owners more likely to produce consumable works (e.g., student workbooks, etc.), time-sensitive publications (e.g., almanacs, record-books, etc.), and works that can be revised frequently (e.g., casebooks and textbooks) than they would be if new copies of copyrighted works did not have to compete with used copies.
46 Copyright owners are clearly aware of the impact of the availability of used copies on the sale of new copies. The Author’s Guild in December 2000 complained in an open letter to Amazon.com about the retailer’s marketing of used copies, which the Guild contends will harm sales of new copies. See Letty Cottin Pegrebin & Patricia S. Schroeder, Letter to Mr. Bezos (Dec. 2000), at http://www.authorsguild.com/news/cap_press_amazon. htm. The recording industry has repeatedly complained about mainstream retailers selling used CDs. See Brian Garrity et al., CD Pricing, Used Sales Debated, Billboard, June 8, 2002, at 1.
47 Compare United States v. Aluminum Co. of Am., 148 F.2d 416, 425–26 (2d Cir. 1945) (discussing monopolist’s policy of controlling the size of a product’s secondary market, which competes with the monopolist’s market for new products, by increasing the price charged for new products to reduce the supply available on the secondary market).
48 This no doubt reflects not only the increase in price competition for access to the work once copies have begun to circulate, but also the fact that in many cases those who are willing to pay the highest price for access to the work will want to have access as early as possible, whereas those who are willing to wait for later access are likely also to be willing to pay less for access at any time.
49 For these purposes, the term “out-of-print works” encompasses works that are no longer available for sale to the public. The term would also include works such as motion pictures and television programs that have never been distributed in copies and are no longer being broadcast or exhibited in cinemas.
50 Ed Christman, Record-Rama Revolves Around Inventory, Billboard, Oct. 2, 1993, at 72.
51 Jason Epstein, Book Business: Publishing Past, Present, and Future 16 (2001). Of the 187,280 book titles published in the United States between 1927 and 1946, only 4,267, or about 2.2%, were in print in 2002. Deirdre K. Mulligan & Jason M. Schultz, Neglecting the National Memory, 4 J. App. Prac. & Process 451, 472 (2002). The trend of books going out of print seems reasonably constant, as Mulligan and Schultz report the following availability of books in 2001: 180 of the 13,470 titles published in 1910 (1.3% in print); 307 of the 8,422 titles published in 1920 (3.6% in print); 174 of the 10,027 titles published in 1930 (1.7% in print); 224 of the 11,328 titles published in 1940 (1.9% in print); and 431 of the 11,022 titles published in 1950 (3.9% in print). Id. at 462 n.33.
52 According to Andrew Grabois, senior director at R.R. Bowker Co., the company that produces Books in Print, over two million records in the Books in Print database have a status of out of print or out of stock indefinitely. The company no longer tracks out-of-print titles on an annual basis, but Mr. Grabois stated that when the company stopped doing so in about 1994, the number of titles that went out of print monthly was about 10,000. This number, according to Mr. Grabois, “is consistent with what the large book chains are experiencing today.” E-mail message from Andrew Grabois to Beth Youngdale, Librarian, University of Texas Law Library (Aug. 21, 2002) (on file with author).
53 Andr� Schiffrin, The Business of Books 7 (2000) (giving figure of 70,000); Gary Ink & Andrew Grabois, Book Title Output and Average Prices: 1999 Final and 2000 Preliminary Figures, in The Bowker Annual: Library and Book Trade Almanac 485 (Dave Bogart ed., 2001) (reporting total of 119,357 titles published in 1999).
54 The term “publisher” here encompasses not only traditional print publishers, but also any entity regularly engaged in distributing copies of copyrighted works to the public. Thus, film studios that sell DVDs and videocassettes of movies are “publishers,” as are record labels that sell CDs of sound recordings.
55 See, e.g., Mark Brown, Old Favorites: You Can Hear ’Em, But Just Try to Buy One, Denver Rocky Mountain News, Dec. 5, 1999, at 4D (noting that “the money scramble and licensing squabbles” can make popular recordings unavailable).
56 Peter M. Nichols, Home Video: Classics on VHS Are Fading Out, N.Y. Times, Jan. 17, 2003, at B36 (“[Some film titles] are available on DVD, but others cut from VHS aren’t and won’t be at least for a while. ‘Studios are good at putting out DVDs, but they have so much it could take years for stuff that goes off the VHS market to come back on in DVD,’ said Irv Slifkin of Movies Unlimited, a Philadelphia mail-order distributor.”).
57 In a perfect market, one would expect that a firm that owned the copyright in a work but found it unprofitable to produce and sell copies at the level at which they are demanded would sell its copyright interest to a firm, perhaps a niche producer, which could produce the small number of copies required to fill demand and do so at a profit. In the actual market, however, few such firms might exist, or the larger copyright owner might view such a firm as a competitor and so choose to withhold the copyright, and keep the book out of print, rather than assist a competitor in producing a profitable product. Indeed, the copyright owner might keep the book out of print, rather than licensing the rights to a competitor, in the hope that some consumers who wish to buy the out-of-print book will instead find that another title issued by the copyright owner is an acceptable substitute and will purchase a copy of that title instead.
58 Schiffrin, supra note 53, at 117–18.
59 See Karen Bruno, Footlight Caters to Soundtrack Collectors, Billboard, Mar. 12, 1994, at 46. One record store owner refuses to sell the last copy of any item. “Of course, since Record-Rama won’t sell the last copy of any title, sometimes a sought-after record may be on its shelf. But in the interest of making sure everyone has access to the music—even rare, out-of-print titles—[the owner] runs a record-rental business.” Christman, supra note 50, at 72. Although Congress in 1984 prohibited commercial rental of copyrighted sound recordings without the copyright owners’ consent, the prohibition does not bar someone who owned a particular record before that law was enacted from renting out that particular record. Pub. L. No. 98-450, � 4(b), 98 Stat. 1727, 1728 (1984). For further discussion see infra notes 138-140, and accompanying text.
60 In addition to the types of suppression discussed in the text, a copyright owner might refuse to sell copies of a work to particular customers. For example, a British publishing company recently refused to sell a copy of a book to an Israeli university, “due to the actions of the Israeli government.” Helena Flusfeder, Israelis Fight Cut to Book Supply, Times Higher Educ. Supp., Nov. 1, 2002, at 48. In such situations, as discussed below, the first sale doctrine allows the refused customer to obtain a copy of the work from a source other than the copyright owner.
61 Eileen Whitfield, Pickford: The Woman Who Made Hollywood 1–2, 370–72 (1997).
62 See Allan Laing, Journey of a Troubled Soul, Herald (Glasgow), Dec. 8, 2001, at 12; Steve Johnson, A Peace Plan High on Harmony, Low on Steam, Chi. Trib., May 13, 1992, at 2-2; 20/20 Downtown: The Cat’s Many Lives (ABC television broadcast, July 9, 2001).
63 Thomas Macaulay, Speech Before the House of Commons (Feb. 5, 1841), in 8 The Works of Lord Macaulay 195, 206 (Lady Trevelyan ed., 1866), quoted in Wendy J. Gordon, Authors, Publishers, and Public Goods: Trading Gold for Dross, 36 Loy. L.A. L. Rev. 159, 187–88 (2002).
64 See Goldstein, supra note 41, at 290; Neil Netanel, Copyright Alienability Restrictions and the Enhancement of Author Autonomy: A Normative Evaluation, 24 Rutgers L.J. 347, 385–86 (1993).
65 An example of such a situation might be the music group Ministry’s first album, With Sympathy. The group’s lead singer now “detests” and “disclaims” the early work, which is radically different from its later work and which he claims resulted from coercion by the recording company. See, e.g., Robert Hilburn, The Face of Fame, The Face of Anger, L.A. Times, Aug. 2, 1992, Calendar, at 2; Marty Hughley, Dark Side of the Tune, Oregonian, Aug. 13, 1999, Arts & Living, at 43; Jim Sullivan, Ministry’s Vicious and Fierce Music, Boston Globe, Jan. 13, 1990, Arts & Film, at 12. If, as is common, the recording company owns the copyright in the album, then the group may well denounce their early work, but they will not have the authority to stop further circulation of it.
66 See 17 U.S.C. � 203 (2000). Termination is not available for works made for hire, and termination does not extinguish all of a transferee’s rights to exploit a derivative work. Before the 1976 Copyright Act, the renewal provisions of copyright law gave authors a similar, though less certain, opportunity to reclaim copyright ownership that had been transferred to a third party by vesting the renewal term of copyright in the original author rather than in the party that owned the copyright at the time of renewal.
67 Stewart v. Abend, 495 U.S. 207, 228–29 (1990).
68 A corporate entity can be an “author” because the work-made-for-hire provisions of the 1976 Act deem the employer to be the “author,” and not merely the initial copyright owner, of any work made for hire. 17 U.S.C. � 201(b).
69 Other motives might lead to withdrawal. Harper’s was preparing to publish the book Leo Trotsky was writing when he was murdered in 1940, but the prospect of a war in which the United States would be allied with Stalin’s Soviet Union led the editor, after consulting a friend in the State Department, to hold the book. “Accordingly, the copies of Trotsky’s books that had already been printed were left to gather dust in the Harper’s warehouse until the end of the war.” Schiffrin, supra note 53, at 131.
70 As an economic matter, if there is even a limited market for the work, it might be rational for the company to sell its copyright interests to another entity that is willing to distribute the work to that market, but it is clear that such economically rational behavior does not always occur, as the examples in the text indicate.
71 870 F.2d 40, 42 (2d Cir. 1989).
72 Id.
73 Id. at 45.
74 In fact, pre-1948 radio episodes of Amos ’n’ Andy were in the public domain due to nonrenewal, so copies of those episodes might have been available to the public. Id. at 43.
75 The basic term of copyright is the life of the author plus an additional seventy years. 17 U.S.C. � 302(a) (2000). Thus, if the author dies as soon as the work is completed, the copyright will last for seventy years. If, on the other hand, the author completes the work at a young age, say twenty, and lives a long life, say to age 100, the work will be protected by copyright for 150 years. For works made for hire, the term of copyright is the shorter of ninety-five years from publication or 120 years from creation. Id. � 302(c).
76 See Tom Kuntz, Adi�s, Speedy. Not So Fast., N.Y. Times, Apr. 7, 2002, at 4–3 (reporting allegations in the Hispanic community that Warner Brothers cartoons featuring the character Speedy Gonzales were largely absent from the programming of The Cartoon Network because of network fears that the cartoons embody negative stereotypes); see also John Leland & John W. Fountain, Film Brings in Cash and Controversy, N.Y. Times, Sept. 26, 2002, at A25 (reporting calls for the deletion of jokes mocking Martin Luther King, Jr. and Rosa Parks from video and DVD releases of the film Barbershop).
77 227 F.3d 1110, 1113 (9th Cir. 2000).
78 Id. About eight million copies were distributed in serial format in the church’s magazine, while 1.24 million copies were distributed in book form. Id.
79 Id. at 1113, 1119; id. at 1122 (Brunetti, J., dissenting).
80 Id. at 1113.
81 Id. at 1122 (Brunetti, J., dissenting).
82 Id. at 1119, id. at 1122 (Brunetti, J., dissenting).
83 She could, of course, attempt to buy back all existing copies. Although copyright law would present no obstacle to such an attempt, it would also not provide her any assistance. Such an effort would seem difficult and, in the case of any work distributed in significant numbers, extremely expensive. And if some copies are held by libraries, they seem unlikely to be interested in selling their copies back to a copyright owner who wishes to withdraw the work, given their mission of circulating information.
84 In addition, the existence of copies outside the control of the copyright owner may ensure that the work is available to competitors after the copyright term expires, so that those competitors will be able, if they choose, to reprint or otherwise exploit the work. Thus, this availability effect of the first sale doctrine also has an impact on affordability, by allowing competitors to supply copies of the work once it enters the public domain.
85 CBS licensed the use of one complete episode of The Amos ’n’ Andy Show and several excerpts in a 1984 independent documentary, Amos ’n’ Andy: Anatomy of a Controversy. It has also allowed clips to be used in a documentary aired on its affiliated network, TV Land, and in a TV special documenting the fiftieth anniversary of the CBS Television City studio complex. See e-mail from Elizabeth McLeod, radio and TV historian, to Bert Greene, Law Student, University of Texas (July 17, 2002) (on file with author).
86 Worldwide Church of God, 227 F.3d at 1123 (Brunetti, J., dissenting). Although the book may have been “difficult to obtain through usual channels,” it was at least possible to obtain copies. Id.
87 See, e.g., United States v. Paramount Pictures, Inc., 334 U.S. 131, 158 (1948) (“[R]eward to the author . . . serves to induce release to the public of the products of his creative genius.”); Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932) (“The . . . primary object in conferring the [copyright] monopoly lie[s] in the general benefits derived by the public from the labors of authors.”).
88 The first sale doctrine’s availability effect has probably increased in importance as the copyright term has lengthened. For the first 120 years of U.S. copyright law, the longest time that anyone would have to wait for a work to enter the public domain, and thus escape from a copyright owner’s ability to suppress it, was forty-two years. Until 1976, the longest wait would be 56 years. Today, the shortest period of a copyright owner’s exclusive control is 70 years, and the longest period could stretch to 150 years in some cases.
89 See, e.g., Cole Porter, Begin the Beguine, in The Complete Lyrics of Cole Porter 133 (Robert Kimball ed., 1983); see also L. A. Johnson, They’re Playing Our Song; Couples Reflect on the Soundtrack of their Relationships, Pittsburgh Post-Gazette, Feb. 11, 1999, at D1 (“Some couples love their song because it was playing at a special place or during a defining moment in their relationship. Other couples love their song because the words describe their relationship. Songs—as well as rituals and experiences they don’t share with others help define a couple’s union as special.”).
90 Worldwide Church of God, 227 F.3d at 1122 (Brunetti, J., dissenting).
91 Id. at 1118.
92 Id. at 1122 (Brunetti, J., dissenting).
93 Indeed, in some cases, the first sale doctrine will allow a work to circulate where the work’s human author wishes it to do so, even though the work’s copyright owner does not wish to engage in further dissemination.
94 In a sense, an author’s decision to publish a work is essentially irreversible, in that the author has no guarantee that she will later be able, if she wishes, to retrieve the work entirely. Even if the author has not distributed copies of the work but has merely publicly performed it or displayed it, she will be unable to erase it from the memory of those who witnessed the display or performance. The accuracy and comprehensiveness of the memories of the work will obviously vary with the audience member and the length and type of work involved, as well as the frequency with which it is displayed or performed. Many radio listeners could perhaps quite accurately perform musical works they have heard repeatedly, while movie- and theatergoers would no doubt be harder pressed to recreate the films and plays they see, though some could no doubt recite substantial portions of dialogue, and some could certainly write a summary of the film that would be detailed enough to infringe on the work’s copyright. See, e.g., Tompkins v. Halleck, 133 Mass. 32, 33 (1882) (“[O]ne Byron and one Mora attended the representation [of the plaintiff’s play at a theater], on three or more occasions, with the intent of copying and reproducing the drama as there enacted. Byron committed as much of the play as he could to memory, and, after each performance, dictated it to Mora until the copy was completed. [The performance of the play from Byron’s manuscript was] found to be in all substantial particulars identical with the plaintiff’s drama . . . .”).
The inability to effectively withdraw a work after it has been made public might lead an author never to publish the work in the first place. But this consequence of publication has largely been true in U.S. copyright law for over 200 years and does not seem to have seriously diminished the quantity and quality of copyrighted works made available to the public.
95 See, e.g., David King, The Commissar Vanishes: The Falsification of Photographs and Art in Stalin’s Russia 10–12 (1997). After Lavrenti Beria, the head of the KGB’s predecessor organization, was executed, subscribers to the Great Soviet Encyclopedia were sent pages to replace the positive article on Beria that was originally printed in the “B” volume of the encyclopedia with one on the Bering Sea. See Christopher Andrew & Vasili Mitrokhin, The Sword and The Shield 2 (1999); Charles R. Morris, Iron Destinies, Lost Opportunities 84 (1988). Such tactics apparently continue today, though perhaps with less success than in the Soviet Union. The publisher of the journal Human Immunology decided to withdraw a controversial article it had published in September 2001. “Elsevier Science [the publisher of the electronic database in which the journal appeared] removed the electronic version of the article and sent a letter to subscribers telling them to ignore it in the print edition or, preferably, to ‘physically remove the relevant pages.’” Andrea L. Foster, Elsevier’s Vanishing Act, Chron. of Higher Educ., Jan. 10, 2003, at A27.
96 See, e.g., Peter M. Nichols, ‘Beauty’ Was Big, But Make Way for ‘Aladdin,’ N.Y. Times, Sept. 12, 1993, � 2, at 42. Disney is not the only film studio to engage in this practice, though other studios apparently generally withdraw films for shorter periods. See Daniel Cerone, The Seven-Year Hitch, L.A. Times, Mar. 19, 1991, at F-1.
97 See Cerone, supra note 96, at F-1.
If you’re a parent waiting patiently for your toddlers to grow a wee bit older before buying them one of those classic Walt Disney animated films you’ve seen advertised on videocassette, you might want to reconsider your plans. With Walt Disney Home Video’s limited-time only policy, which removes animated classics from the marketplace after a prescribed time period, your children may hit puberty before the title you want becomes available again—if it becomes available at all.
Id.
98 Alexander Stille, The Future of the Past 308 (2002); see also J.O. Ward, Alexandria and its Medieval Legacy, in The Library of Alexandria: Centre of Learning in the Ancient World 163, 167–68 (Roy MacLeod ed., 2000) (“[W]e should not assume that the survival of even the best items was an easy matter. During the low ebb of the Dark Ages, say 550–750 AD, books almost ceased to be copied, meaning that even such literature as had survived the late antique disasters was at risk of disappearing. . . . Many texts hung by a single thread . . . and would require good luck in the centuries to follow.”).
99 Margr�t Eggertsd�ttir, Manuscript Resources in Iceland 3–4, available at http:// www.asu.edu/clas/acmrs/Eggsdottir.pdf (last visited Jan. 15, 2003); see also Ari Thorgilsson, The Book of the Icelanders 40 (Halldor Hermannsson ed. trans., 1930).
100 See, e.g., Kendra Mayfield, Word Up: Keeping Languages Alive, WiredNews, Nov. 4, 2002, at http://www.wired.com/news/print/0,1294,54345,00.html (linguists seeking to preserve information about dying languages for future generations plan to mass-produce long-lasting analog disks of information and distribute them worldwide); Claire Tristram, Data Extinction, Tech. Rev., Oct. 2002, at 37, 42 (describing researcher’s plan for detailing a “virtual” computer in a few pages of text “which could be distributed via the Web and copied out on paper everywhere, assuring their survival”).
101 “Collections among . . . libraries are redundant, distributed, decentralized,” which “ensures that readers don’t lose access to the documents at the whim of the publisher, by malicious act, by natural disaster, by official edict, or simply by being lost.” See LOCKSS: Project Descriptions - Frequently Asked Questions, at http://lockss.stanford.edu/projectdescfaq. htm (last visited Apr. 2, 2003); see also The Long Now Foundation, Rosetta Disk, at http:// www.rosettaproject.org:8080/live/ disk (last visited Feb. 28, 2003).
102 See, e.g., Anthony Slide, Nitrate Won’t Wait 21 (1992) (“In the 1970s, the Museum of Modern Art was able to acquire from Eastern Europe a print of [D.W.] Griffith’s 1919 feature, A Romance of Happy Valley. Almost 30 years earlier, [its curator] had turned down the opportunity to acquire the only surviving nitrate print of the film in the United States.”).
103 Luciano Canfora, The Vanished Library 196–97 (Martin Ryle trans., 1987).
104 Under the assumptions given, for one copy, the chance that the copy still exists at the end of one year is 0.99. The chance that the copy still exists at the end of 200 years is .99200, or .133, just over thirteen percent.
105 If 100 copies exist, at the end of 200 years either all of the copies will have been destroyed or some copy or copies will have survived. The likelihood that all copies are destroyed, plus the likelihood that not all copies are destroyed, must equal 1, so the likelihood that not all copies are destroyed is equal to 1 minus the likelihood that all of the copies are destroyed. At the end of 200 years, the likelihood that any one copy has been destroyed is 0.87 (given that the likelihood of that one copy surviving is, as noted in note 104, 0.13). The likelihood that all 100 copies have been destroyed at the end of 200 years is therefore 0.87100, or 0.000000056. The likelihood that not all 100 copies have been destroyed—that is, that at least one copy has survived—is therefore 1 minus 0.000000056, or 0.999999944, or 99.9999944%.
106 See Sam Kula, There’s Film in Them Thar Hills!, Amer. Film, July/Aug. 1979, at 14; see also Slide, supra note 102, at 99–101.
107 See Kula, supra note 106, at 15 (noting that the majority of the films recovered were considered to have been lost); id. at 18 (noting that among the films recovered was “the only known surviving copy” of a 1917 Harold Lloyd film); Library of Congress, Motion Pictures in the Library of Congress, at http://lcweb.loc.gov/rr/mopic/mpcoll.html (Apr. 24, 2002).
108 Of course, the first sale doctrine probably would not apply to the Dawson City film prints, because those copies presumably had been licensed rather than sold to exhibitors. The example simply illustrates that the greater the variety of environments in which copies exist, the higher the likelihood that some of those copies will survive. The first sale doctrine, by facilitating a market in ownership of copies of a work, helps to increase the variety of owners and storage environments for those copies.
109 Gay Barton, Chopin, Kate O’Flaherty, 4 American National Biography 277, 836, 837–38 (John A. Garraty & Mark C. Carnes eds., 1999); Hershel Parker, Melville, Herman, 15 American National Biography, supra, at 277, 280–83; see also Toby Mundy, Good Books, Prospect, Oct. 2002, at 24, 29 (“William Faulkner, now considered by many to be . . . the most important American writer of the 20th century, struggled to find readers during his early career.”); Erica Noonan, Ahab’s Wife, AP Online, Dec. 1, 1999, 1999 WL 28144980 (“Moby-Dick was a commercial failure in America, selling fewer than 6,000 copies before Melville’s death in 1891. . . . The book was out-of-print for decades before eventually earning a place in virtually all university American literature classes.”).
110 Even if we largely agree with the taste of the original public and/or critics, we are surely happier being able to survey a broader selection and decide for ourselves. See Mundy, supra note 109, at 29 (“It is impossible to guess which of today’s books will be revered by our great-grandchildren.”).
111 Polly Shulman, An Icy Night, an Old Book, and Decades Later . . . , N.Y. Times, Sept. 8, 2002, � 2, at 34.
112 Id.
113 See, e.g., Slide, supra note 102, at 17–18 (Film producers in the 1910s and 1920s “paid scant attention to the need to safeguard their films for . . . future commercial release. With an average of 6,000 feature films produced in each decade, there was little, if any, need to resurrect an old film for reissue.”).
114 “Freely transferable” here means not only that the copy can be transferred, but that it can be accessed by the transferee just as easily as it had been by the transferor.
115 See, e.g., Liu, supra note 26, at 1321–22, 1349–50 (noting the risks of being overoptimistic about the development, efficiency, and low cost of, e.g., micropayments systems, metering technology, etc.).
116 See id. at 1249, 1255.
117 See Jane C. Ginsburg, From Having Copies to Experiencing Works 2 (Columbia Law School, Public Law Working Paper No. 8, 2000), available at http://papers.ssrn. com/paper.taf?abstract_id=222493 (“[I]n a world of access conditioned on non-retention of digital . . . copies, we will be able to summon up the work at any time, but we may not be able to have our own copy.”).
118 It is also in some ways analogous to exploiting a copyrighted work by public performance—such as showing a movie in a cinema or performing a song in concert—or public display—such as by exhibiting a painting in a gallery—without distributing any copies of the work to the public.
119 One who receives a television broadcast might, of course, make a copy of the work received. That act of reproduction, however, might infringe on the work’s copyright. When the Supreme Court ruled that home videotaping of broadcast television constituted fair use, it excused only “time shifting” which it defined as “the practice of recording a program to view it once at a later time, and thereafter erasing it.” Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 423 (1984) (emphasis added). The court declined to consider the legality of home-taping for purposes of “library building,” or any question of “the sharing or trading of tapes.” Id. at 458 n.2 (Blackmun, J., dissenting). By hypothesis, lawfully made time-shifting copies will not remain in existence to be transferred to other persons, having been erased. Home tapes made for purposes other than time-shifting might well constitute infringing copies and thus not be transferable under the first sale doctrine, which only applies to lawfully made copies.
A similar analysis applies to storage of Web-transmitted material on a recipient’s computer. Although that material will be stored transitorily in the random-access memory (RAM) of the user’s computer, such storage will be only temporary. Users may be able to store Web-transmitted material more permanently, but such reproduction of the transmitted works could constitute infringement, so that the user’s copies would not be subject to the first sale doctrine. On the copyright issues raised by RAM storage, see R. Anthony Reese, The Public Display Right: The Copyright Act’s Neglected Solution to the Controversy over RAM “Copies,” 2001 U. Ill. L. Rev. 83.
120 See 17 U.S.C. � 109(a) (2000).
121 See id.
122 One additional obstacle is that a downloaded copy might be less attractive to a potential transferee than a used copy originally produced and issued by the copyright owner. The potential transferee of a CD containing a download made by another consumer has few assurances that the CD actually contains the work it purports to contain or of the quality of the copy. Middlemen might arise to assume a quality assurance role, though such a change would be likely to increase the costs of buying such a copy.
123 An example of such a tethering system is the Adobe Acrobat eBook Reader involved in United States v. Elcom Ltd., 203 F. Supp. 2d 1111 (N.D. Cal. 2002). The software operated so that when a purchaser downloaded an ebook, “the copy of the ebook can only be read on the computer onto which it has been downloaded.” Id. at 1118; see also TurboTax Anti-Piracy Code Spurs Backlash, L.A. Times, Jan. 9, 2003, at C3 (The product activation code for certain tax preparation software “essentially ties the software to a single computer to prevent buyers from sharing. Customers can use TurboTax on other computers, but printing and electronic filing of tax returns must be done from the original computer.”).
124 U.S. Copyright Office, supra note 19, at 75 (footnote omitted).
125 Id. The report continues, “The only way of accessing the content on another device would be to circumvent the tethering technology, which would violate section 1201.” Id.
126 See generally Jeff Howe, Licensed to Bill, Wired, Oct. 2001, available at http://www. wired.com/wired/archive/9.10/drm.html.
127 See Liu, supra note 26, at 1290 & n.159 (“Several federal courts have held that the first sale doctrine does not apply to software users who have licensed the software, because they have not acquired title to a particular copy.”). Compare, e.g., Adobe Sys. Inc. v. Stargate Software Inc., 216 F. Supp. 2d 1051 (N.D. Cal. 2002) (holding that shrinkwrap or clickwrap license made software purchaser licensee, not copy owner), with Softman Prods. Co. v. Adobe Sys. Inc., 171 F. Supp. 2d 1075 (C.D. Cal. 2001) (holding that software purchaser was copy owner, despite purported license).
128 See, e.g., Mark A. Lemley, Beyond Preemption: The Law and Policy of Intellectual Property Licensing, 87 Cal. L. Rev. 111 (1999); Mark A. Lemley, Intellectual Property and Shrinkwrap Licenses, 68 S. Cal. L. Rev. 1239 (1995).
129 Having discovered these approaches in the context of digital copies, copyright owners might try them with analog copies as well, such as distributing books with accompanying license agreements that purport to classify the transaction as a license, in which the purchaser obtains only possession of her copy (the book) but not ownership of that copy, or purporting to restrict directly the purchaser’s right to transfer her copy. It is unclear whether courts would recognize such transactions as licenses, see infra note 215, or would continue to find that in reality the purchaser became the owner of the copy and was entitled to redistribute it under section 109. As to express restrictions on transfer, the Supreme Court case that established the first sale doctrine, Bobbs-Merrill Co. v. Straus, did in fact involve an attempt by the copyright owner to impose a contractual restriction on resale by printing the restrictive term in every copy of the work, and the Court rejected that attempt. 210 U.S. 339, 341 (1908).
130 See, e.g., Ginsburg, supra note 117, at 17 (“In a world of instant access, the hard copy of the future is likely to look very much like the hard copy of a relatively distant past. That is, deluxe editions will persist as attractive objects. Inexpensive mass market versions may eventually disappear, because their primary value is to convey content, not to cherish as an object. Online access may ultimately replace hard copies for content conveyance . . . .”).
131 Although dissemination of copyrighted works over computer networks promises to be cheaper than physically producing and distributing multiple copies, network dissemination still involves costs including computer storage and bandwidth, and those costs are not always minimal. See Matthew Mirapaul, Music Made with Soda Cans and Soggy Hamburger, N.Y. Times, June 24, 2002, at E2 (describing a musician who found that heavy traffic to his Web site over a week, in which only 250 people downloaded an album available at the site, resulted in a bill of about $1,800 from his Internet service provider); see also Schiffrin, supra note 53, at 148 (“[E]stablishing and maintaining a site that will attract an audience is an expensive venture involving substantial design and advertising budgets.”).
132 On consumer home recording, see supra note 119.
133 Some consumers might also prefer such a per-use payment to simply borrowing a copy of a work, because the per-use charge might be cheaper than the nonmonetary costs of borrowing.
134 If, on the other hand, the price of online access is higher than the price of buying a copy, then the consumer would presumably continue to buy a copy and discard it when done—assuming that online access supplements, rather than replaces, the sale of copies. See infra note 141 and accompanying text.
As noted above, supra note 43, another example may be sound recordings. There are, for example, songs that I want to hear infrequently enough that I would not be willing to buy a CD containing the song but more frequently (or at more convenient times) than they are played on the radio. Being able to listen to such songs on demand as part of a monthly subscription to an online music service, or on payment of a small fee, would be a desirable model of access not available before the digitally networked era.
135 See L.A. TIMES, Online Archive Pricing, at http://pquasb.pqarchiver.com/latimes/ (last visited Jan. 29, 2003); N.Y. Times, Premium Archive, at http://www.nytimes.com/ premiumproducts/archive.html (last visited Jan. 29, 2003).
136 See Encyclopedia Britannica, Subscription Service Registration, at http://safe.britannica.com/subscribe/sub/Welcome.jsp (last visited Jan. 29, 2003).
137 Some of these services may be selling more than mere limited access to works, as they may allow customers to save or print a copy of the works the customers access.
138 Computer Software Rental Amendments, Pub. L. No. 101-650, tit. viii, 104 Stat. 5089, 5134–35 (1990); Record Rental Amendment of 1984, Pub. L. No. 98–450, 98 Stat. 1727.
139 H.R. Rep. No. 98–987, at 2 (1984), reprinted in 1984 U.S.C.C.A.N. 2898, 2899.
140 See, e.g., Audio and Video First Sale Doctrine: Hearings on H.R. 1027, H.R. 1029, and S.32 Before the Subcomm. on Courts, Civil Liberties, and the Admin. of Justice of the House Comm. on the Judiciary, 98th Cong. 5 (1985) (statement of Stanley Gortikov, President, Recording Industry Association of America) (“[T]echnology has brought us something even more remarkable and, at the same time, even more threatening: the digital compact disc. . . . Unlike vinyl LP’s and tapes, it does not wear out. To the record rental store, it is like a bottomless well. It can be rented over and over again, and taped over and over again, without any loss of quality. Thus, the success of the compact disc could spur an enormous and rapid growth in the number of record rental stores.”); S. Rep. No. 98–162, at 2–3 (“The Committee is concerned that this record rental problem will soon worsen as a result of a new technological breakthrough—the development and imminent marketing of the digital ‘compact disc’—which promises to increase record rentals even more. The compact disc is a small, virtually indestructible record album. It is difficult to damage, it will last a very long time, and it provides better sound reproduction than ever before. Rental shops will soon be able to rent out each compact disc hundreds of times . . . .”).
141 One might, of course, copy the content on a Web site, just as one might record a radio or television broadcast, to have a permanently accessible copy. But doing so would risk infringing the copyright in the work. See supra note 119.
142 See supra notes 45–47 and accompanying text.
143 See supra notes 45–46 and accompanying text.
144 See Garrity, supra note 46, at 83 (“Internet piracy . . . is resulting in even less liquidity in the secondary market, because less new product is being purchased.”).
145 See, e.g., Jon Healey, Another Boost for E-Books, L.A. TIMES, Nov. 20, 2002, at C1 (reporting that “a leading distributor of electronic books unveiled a service . . . allowing libraries to offer more than 35,000 titles that can be borrowed through the Internet and read on personal devices”). The terms of such access could vary greatly. The arrangement might closely track the existing library model, in which only one patron at a time could access the work using the library’s account, just as only one patron at a time can check out a library’s single copy of a work. Or the arrangement might allow much wider access—all patrons, or some designated subset, might have simultaneous access to the work. The price charged would presumably depend in part on the amount of access allowed. See id. (reporting that library and publisher representatives agree that business models for electronic-book lending are still in flux).
146 Indeed, online access might allow a library to expand the number of works it offers to patrons. If a library must purchase a copy of a work to make it available, then the library will presumably be less likely to buy works for which the demand is low. A copy that costs fifty dollars and will be used by five people a year for five years costs only two dollars per patron use; if the same copy will only be used by one person over five years, then the copy costs fifty dollars per patron use. If, however, a library could purchase online access on a per-use basis, then the library might, depending on the per-use price, be able to afford to offer access to many little-used works, since the library would only be charged when a patron actually obtained access to the work. A library that decided it could not afford to pay fifty dollars for a book that would only get one use over five years might be able to offer online access to that work if the library would only pay, for example, five dollars for the one use that takes place during the five-year period.
147 This would, of course, depend on the terms of the library’s contract, which might provide that in the case of nonrenewal the library would continue to have access to works previously covered by the contract, but not to any additional works. This might be more likely, for example, with respect to access contracts for periodical or serial issues than for collections of books. In addition, at least one technological system (LOCKSS) has been designed to allow libraries to locally store and preserve online subscription content so that the libraries’ users can continue to have access to the content after the subscription expires or the content is removed from its online location. See LOCKSS, supra note 101.
148 See, e.g., Mark Stefik, Shifting the Possible: How Trusted Systems and Digital Property Rights Challenge Us to Rethink Digital Publishing, 12 Berkeley Tech. L.J. 137, 148 (1997) (“The trusted system approach addresses that issue [of library dissemination of digital copies] head-on. If some publishers do not desire works to be loaned out, they can simply not grant loan rights.”).
149 Whether copyright owners would exercise any increased ability to engage in price discrimination is a separate issue.
[T]he notion that, under a regime of digital lock-up, copyright holders would engage in near-perfect price discrimination such that all would have access is little more than a pipe dream. For one, copyright industries have repeatedly exhibited a path dependent resistance to licensing or engaging in new technological methods of exploitation that might endanger their traditional profit centers.
Neil Weinstock Netanel, Impose a Noncommercial Use Levy to Allow Free P2P File-Swapping and Remixing 18 (Nov. 2002) (footnote omitted) (second draft, on file with author).
150 See generally Harold Demsetz, The Private Production of Public Goods, 13 J.L. & Econ. 293 (1970).
151 See, e.g., William W. Fisher III, Property and Contract on the Internet, 73 Chi.-Kent L. Rev. 1203, 1237 (1998).
152 Professor Neil Netanel offers a useful caution, however, against overoptimistic predictions about how much easier price discrimination will become due to technological changes.
[A]dvocates of digital lock-up hold a Panglossian view of digital technology’s capacity to support access-enhancing price discrimination . . . predicated on the assumption that digital technology can accurately predict consumer valuations by compiling and analyzing user profiles based on individuals’ past uses and purchases. . . . [And] price discrimination faces material cost and institutional obstacles. Determining user valuations, setting differential pricing, designing product and distribution systems to enable differential pricing, and creating and enforcing prohibitions against consumer arbitrage require considerable information, labor, and financial and organizational resources.
Netanel, supra note 149, at 18–20.
153 See, e.g., Liu, supra note 26, at 1318.
154 See, e.g., Yochai Benkler, An Unhurried View of Private Ordering in Information Transactions, 53 Vand. L. Rev. 2063 (2000); James Boyle, Cruel, Mean, or Lavish? Economic Analysis, Price Discrimination and Digital Intellectual Property, 53 Vand. L. Rev. 2007 (2000); Julie E. Cohen, Copyright and the Perfect Curve, 53 Vand. L. Rev. 1799 (2000); Fisher, supra note 151, at 1237; Wendy J. Gordon, Intellectual Property as Price Discrimination: Implications for Contract, 73 Chi.-Kent L. Rev. 1367 (1998); Michael J. Meurer, Price Discrimination, Personal Use and Piracy: Copyright Protection of Digital Works, 45 Buff. L. Rev. 845 (1997).
155 Gordon, supra note 154, at 1387–89.
156 Id. at 1388.
157 Of course, the copyright owner may face competition from owners of copyrighted works that buyers regard as acceptable substitutes. In that situation, though, the owner would not be in a monopoly position to start with, thus making price discrimination unlikely (as well as unneeded as a palliative to the undesirable effects of a monopoly position). See Boyle, supra note 154, at 2021(35.
158 We might be reluctant to facilitate price discrimination even if it results in some increase in affordability. As Professor Gordon points out, perfect price discrimination eliminates consumer surplus, raising doubts about its desirability. Gordon, supra note 63, at 2.
159 The actual impact of such a shift is still difficult to predict, because much will depend on the actual technologies developed and adopted, as well as the business models that copyright owners pursue.
160 See supra notes 49–59 and accompanying text.
161 Epstein, supra note 51, at 28(29. “Machines capable of printing and binding small quantities of digitized texts on demand are already deployed by Ingram, the leading American wholesaler, by Barnes & Noble and other retailers, and in publishers’ warehouses . . . .” Id. at 29.
162 See Mundy, supra note 109, at 29 (“Most [publishers] long to reduce the sums they spend on warehousing by digitising as much of their inventory as possible. The idea of printing on demand . . . is also attractive as a means of keeping expensive stock holdings to a minimum.”). If the technology for storing works changes with some frequency so that data must repeatedly be migrated to new formats, however, copyright owners might decide that the expected returns on works with a relatively low demand do not justify the costs of such migration. See infra notes 199–201 and accompanying text.
163 Epstein, supra note 51, at 29.
164 See, e.g., Eileen Fitzpatrick, Kiosk Commerce, Billboard, July 29, 2000, at 76; Eileen Fitzpatrick, Kiosk Firms Welcome Competition, Billboard, May 13, 2000, at 125; Universal Music unveils download plan, News.com, Nov. 19, 2002, at http://news.com.com/2102-1023-966500.html (reporting that world’s largest music company announces plan to make over 43,000 songs available for download, burnable to CD, at retail outlets and Web sites).
165 Depending on the cost of the custom-burned DVD, those alternatives might be important to keep access to the movie affordable, as discussed above, supra notes 131(144 and accompanying text.
166 Again, costs of migration to new formats might make this more expensive. See infra notes 199–201 and accompanying text.
167 Paul Goldstein, Copyright’s Highway 199 (1994).
168 See supra notes 49–113 and accompanying text.
169 See Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace, 14 Cardozo Arts & Ent. L.J. 215, 274–75 (1996) (noting that distribution of copies guarantees public access, whereas a work disseminated by transmission “does not become available to the general public for subsequent use”).
170 On home copying by users, see supra note 119; see also Gordon, supra note 154, at 1387 n.75 (“Should the Internet come to dominate our society as the delivery source for musical and literary works, paper copies of classics could become hard or cumbersome to find.”).
171 17 U.S.C. � 109(a) (2000).
172 James Glave, Family Circus Parody Folds Tent, WiredNews, Sept. 21, 1999, available at http://www.wired.com/news/print/0,1294,21853,00.html.
173 See Declan McCullagh, More on Newsbytes R.I.P., Declan McCullagh’s Politech, June 2, 2002, at http://www.politechbot.com/p-03606.html. Apparently at least some of the Newsbytes reports will remain available on LEXIS/NEXIS, which lists Newsbytes content from July 1989 in its NEWS/ASAPIN file. See id. In addition, because Newsbytes reports were syndicated, some reports may have been printed or posted online in other locations and so may be available there. See also Thor Olavsrud, Washington Post Co. to Shutter Newsbytes (May 16, 2002), at http://dc.internet.com/news/article.php/1136291.
174 See About the Comic, at http://www.kingfeatures.com/features/comics/ familyc/aboutMaina.php (last visited Jan. 15, 2003).
175 In many cases, of course, access to much of the run of The New York Times or other periodicals would be by means of microfilm or microfiche copies, rather than the paper copies in which the newspaper originally circulated to the public, because many libraries have chosen to buy such film copies to replace their paper runs of serials. This phenomenon may present its own preservation problems. See generally Nicholson Baker, Double Fold: Libraries and the Assault on Paper (2001).
176 Andrea L. Foster, Elsevier’s Vanishing Act, Chron. of Higher Educ., Jan. 10, 2003, at A27, A28.
177 Id. at A27.
178 Id. at A28. Librarians reacted favorably to a recent policy change by Elsevier that will result in some cases in “retracted” articles remaining available electronically with a watermark indicating the retraction. Andrea L. Foster, Elsevier Announces New Procedures for Retracting Online Articles, Chron. of Higher Educ., Feb. 10, 2003, at http://chronicle. com/free/2003/02/2003021002t.htm.
179 Elsevier Science apparently intends to deposit an archive of all of its electronically published articles with the Royal Dutch Library, but it is unclear how widely that archive will be accessible. Foster, supra note 176, at A28.
180 “This is the scariest feature of the Internet, the part George Orwell would have understood best: The sense in which Net has no real history. A page can be changed without anybody noticing. It gets updated but no marks are left. ... Remember the editors in 1984 constantly rewriting the past? Those editors are the Internet.” Lawrence Lessig, Innovating Copyright, 20 Cardozo Arts & Ent. L.J. 611, 615 (2002) (citation omitted). For example, Epstein notes that “[f]or Walt Whitman and his ever-changing editions of Leaves of Grass the Web would have been ideal.” Epstein, supra note 51, at 173. For critics and historians, losing all previous versions to an updated Web page would perhaps be less than ideal.
181 Although some consumers will record a work, as noted above, see supra note 119, such recordings may not be subject to the first sale doctrine. In addition, although a home recording of a work that has otherwise disappeared will be better than no copy at all, relying on such copies for preservation purposes seems unwise. Will most works be copied? Will those copies be of high quality? Will they be retained?
182 But see Katie Hafner, Saving The Nation’s Digital Legacy, N.Y. Times, July 27, 2000, at D1:“Many Web pages created before 1996 have been lost because no one thought to take periodic snapshots for archival purposes until then.” Whether those pages are truly “lost,” of course, depends on whether their creators retained copies of them.
183 “[M]any films are lost every year because many small copyright holders, like educational publishers, must eliminate their stock for the next year’s supply; worse yet, these firms commonly go out of business or file for bankruptcy, often resulting in loss of all copies of past works.” Mulligan & Schultz, supra note 51, at 463 n.35.
184 As of 1959, renewals accounted for just under fifteen percent of the registered works eligible for renewal that year. Barbara A. Ringer, Renewal of Copyright, in 1 Studies on Copyright 503, 617–18 & tbl.2 (1963). By 1991, the rate had risen to only twenty-two percent. William M. Landes & Richard A. Posner, Indefinitely Renewable Copyright (Univ. of Chi. Law Sch., Olin Working Paper No. 154, 2002), at http://papers.ssrn.com/ sol3/papers.cfm?abstract_id=319321.
185 See also Mulligan & Schultz, supra note 51, at 463 n.35.
186 See, e.g., Computer Sci. & Telecomm. Bd., Nat’l Research Council, The Digital Dilemma 209–10 (2000); Hafner, supra note 182, at D8 (“Counterintuitively, perhaps, digital archives are more vulnerable than their acid-free paper counterparts. That is because computer hardware and software quickly become obsolete, and the durability of magnetic storage media like tapes and disks is limited.”); Jeff Rothenberg, Ensuring the Longevity of Digital Documents, Sci. Am., Jan. 1995, at 42, 44 (“Most files contain information that is meaningful solely to the software that created them.”); Tristram, supra note 100, at 38 (“‘The layman’s view is that digital information is more secure, when in fact it’s far more ephemeral,’ . . . says [Abby Smith, director of programs at the Council on Library and Information Resources]. ‘We know how to keep paper intact for hundreds of years. But digital information is all in code. Without access to that code, it’s lost.’”).
187 Stille, supra note 98, at 302.
188 Richard Koprowski, acting head of the Archive of Recorded Sound at Stanford University, offered an example of the possible fragility of music CDs, by comparison to 78 rpm recordings, which he characterized as “‘remarkably stable.’” “‘I can hold up a 78 made by Caruso in 1917 and a CD issued by RCA Victor in 1993, which has that same 78 on it, and the CD can’t be played anymore because it has suffered from ‘bronzing.’ The silver layer has disintegrated inside the plastic wrap, and it’s become unreadable.’” Diane Rogers, Now Hear This, STANFORD MAG., Jan./Feb. 2003, at 54, 59; see also Michael W. Gilbert, Digital Media Life Expectancy and Care, @OIT, Fall 1998, available at http://www.oit. umass.edu/publications/at_oit/Archive/fall98/media.html (last revised Feb. 21, 2002).
189 See, e.g., Rothenberg, supra note 186, at 44 (“A file is not a document in its own right—it merely describes a document that comes into existence when the file is interpreted by the program that produced it.”). This is true not only for digitally stored works, but is generally true for works stored in a format that requires mechanical operation to access the work. A vinyl long-playing record, for example, involves analog storage of sound, but without an operable record player, even possession of a perfectly preserved LP in mint condition will not give the possessor access to the work stored on the LP. See generally Stille, supra note 98, at 300–09.
190 Computer Hardware: Information about computer floppy drives, at http://www.computer-hope.com/help/floppy.htm (last visited Feb. 7, 2003).
191 Dell, one of the world’s largest computer makers, recently announced that 3-1/2” floppy disk drives will become optional on its desktop computers, having already become optional on notebook computers. See Associated Press, Dell Computer Removing Floppy Drives on Desktops, Feb. 6, 2003.
192 See Stille, supra note 98, at 301–02.
[A]s the pace of technological change increases, so does the speed at which each new generation of equipment supplants the last. “Right now, the half-life of most computer technology is between three and five years,” said Steve Puglia, a preservation and imaging specialist [at the National Archives]. In the 1980s, the Archives stored 250,000 documents and images onto optical discs—the cutting edge of new technology at the time. “I’m not sure we can play them,” said Puglia, explaining that they depend on computer software and hardware that is no longer on the market.
Id.; see also Tristram, supra note 100, at 39.
JPEG, for example, the standard many digital-camera users rely on to store family photos, is already in the process of being outmoded by JPEG 2000, a higher-quality compression standard. “Unless we do something drastic,” says Margaret Hedstrom, professor of information at the University of Michigan’s School of Information, “in one or two or five years it’s going to be very difficult for people to look back and see the photos they took.”
Tristram, supra note 100, at 39.
193 Tristram, supra note 100, at 39.
194 Robin McKie & Vanessa Thorpe, Digital Domesday Book Lasts 15 Years not 1000, The Observer (London), Mar. 3, 2002, available at http://books.guardian.co.uk/news/articles /0,6109,661585,00.html.
195 Digital Domesday Book Unlocked, BBC NEWS, Dec. 2, 2002, available at http:// news.bbc.co.uk/1/hi/technology/2534391.stm.
196 Gerd Meissner, Unlocking the Secrets of the Digital Archive Left by East Germany, N.Y. Times, Mar. 2, 1998, at D5; Tristram, supra note 100, at 38–39. For examples of digitally stored data and works that nearly became inaccessible, see Rothenberg, supra note 186, at 42.
197 See Collection Development Policy of the Tarlton Law Library, University of Texas at Austin School of Law, Fall 2002, at 8 (“[The] increased emphasis on electronic access has not, however, lessened our commitment to building and maintaining our traditional print collections. Because of the importance of insuring access to our collections for future generations of researchers, the library is very cautious about replacing print format in favor of electronic formats.”) (on file with author).
198 Mayfield, supra note 100 (“‘For the long term, there hasn’t been anything digital that has had a ghost of a chance of being taken as seriously archival,’ [Doug] Whalen [founder of the Endangered Language Fund] said. . . . ‘[The analog disk] could make a big difference, hopefully sometime in the very far future.’”).
199 Tristram, supra note 100, at 39. Another approach, “rebuilding old hardware or keeping it around forever to interpret nearly extinct software or formats is economically prohibitive.” Id.; see also Rothenberg, supra note 186, at 47 (“The cost of repairing or replacing worn out components (and retaining the expertise to do so) must inevitably outweigh the demand for any outmoded computer.”).
200 See Rothenberg, supra note 186, at 44–47; Tristram, supra note 100, at 39–42.
201 See Tristram, supra note 100, at 42 (noting lack of demand and insufficient funding for digital preservation efforts).
202 Film history offers an example. Many film copyright owners, though aware of the degradation of nitrate film stock, did not “migrate” their existing works from that vulnerable medium to more stable film media once available, no doubt because they did not expect to generate much revenue from those works. See supra note 113 and accompanying text.
203 See GladysAnn Wells, Libraries and the 21st Century, J. Internet L., Jan. 2003, at 12, 16 (“Currently, we lose many digitally born documents when their creators decide that they lack sufficient further market value. At this time, libraries often cannot obtain the legal or the technical means to make even one preservation copy. . . . Without a preservation copy, the information will not exist.”). In addition, even conscientious copyright owners might not anticipate the specific preservation problems of particular media until after they have arisen, when it may be too late to preserve many works stored in those media.
204 An example of this is the Divx system, which distributed motion pictures on DVD. Once a user began playback of a Divx disc, the disc could be played back only for a limited time (e.g., 24 hours). To view the disc again, the user’s player would have to contact the issuer of the disc and pay for additional access. After a short time, however, the system was discontinued, and after June 2001 Divx discs became unplayable. See, e.g., R. J. Dunill, The Origins of the Original Divx (Jan. 17, 2002), at http://www.techtv.com/screensavers/archive/0,24396,2100114-1009872000,00.html. If a film existed only in the Divx format, it would now not be accessible, at least not without technology for circumventing the Divx protections that disable access except for the initial limited period and on a licensed player with a connection to the central Divx computer.
205 Of course, in some cases, preservation would require acts of reproduction. To take a simple example, if a library’s copy of a book were missing several pages, restoring the book would require reproducing the missing pages from another copy, an act within the copyright owner’s reproduction right under 17 U.S.C. � 106(1) (2000). Such reproduction might, however, be allowable as fair use, see id. � 107, or under provisions exempting certain archival activities of certain libraries, see id. � 108(c).
206 Id. � 108(c).
207 See supra notes 145–146 and accompanying text.
208 See, e.g., Ginsburg, supra note 117, at 16 n.55 (“The potential unavailability of hard copies also threatens future archives: if a work is available only in an access-protected format, and that format becomes obsolete, a record of the work may be lost unless librarians or archivists may circumvent that access control to extract the work for preservation in a more stable and accessible format.”).
209 See Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 308 (S.D.N.Y. 2000).
210 See Brewster Kahle et al., Re: RM 2002-4—17 U.S.C. � 1201 Exemptions Notice of Inquiry 3–6 (Dec. 18, 2002), available at ftp://ftp.loc.gov/pub/copyright/1201/2003/ comments/025.pdf.
211 17 U.S.C. � 1201 (a)(2), (b)(1).
212 Id. � 108.
213 See Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 N.Y.U. L. REV. 354, 418 (1999).
214 See U.S. Copyright Office, supra note 19, at 78–101; see also supra notes 19–21 and accompanying text.
215 See, e.g., Softman Prods. Co. v. Adobe Systems, Inc., 171 F. Supp. 2d 1075, 1082–88 (2001) (“[I]n determining whether a transaction is a sale, a lease, or a license, courts look to the economic realities of the exchange” and party’s labeling of the transaction as a license does not control the analysis.); Melville B. Nimmer & David Nimmer, 2 Nimmer on Copyright � 8.12[B][1][d], at 8–160 to 8–166 (1978 & Supp. 2002) (While some courts treated transactions between computer software copyright owners and consumers as “license” transactions that left buyers outside the scope of the first sale doctrine, in fact those transactions generally involved a license of copyright rights and a sale of physical copies (diskettes, CD-ROMs, etc.), entitling buyers to further dispose of those copies under � 109(a). “There was no pretense incident to sale that the acquirers were under an obligation to return the physical media to Microsoft or Adobe.”); Raymond Nimmer, The Law of Computer Technology � 1.18[1], at 1-103 (1992) (“Ownership of a copy should be determined based on the actual character, rather than the label, of the transaction by which the user obtained possession.”).
216 17 U.S.C. � 109(a); see, e.g., Softman Prods., 171 F. Supp. 2d at 1085–86 (“[A] single payment for a perpetual transfer of possession is, in reality, a sale of personal property and therefore transfers ownership of that property, the copy of the [copyrighted work].”).
217 See 17 U.S.C. � 114(h). Congress has also limited sound recording copyright owners’ ability to grant exclusive digital transmission licenses in some cases. Id. � 114(d)(3).
218 See id. � 108(d),(e),(g).
219 See, e.g., 2 Paul Goldstein, Copyright 5:106 n.1 (2d ed. Supp. 2003) (“Although, to come within the scope of the exemption, the particular copy or phonorecord in issue must have been ‘lawfully made under this title,’ it need not have been made with the copyright owner’s permission. For example, copies made under the section 107’s fair use privilege . . . , although not authorized, are lawful and so come within the exemption.”).
220 U.S. Copyright Office, supra note 19, at 153–56.
221 Id. at 157–58.
222 The transfer of routine backups may not, in fact, be allowed. In determining whether making a backup copy is fair use, a court could take into account whether the copy would be transferable. For example, the Sony Court, in deciding that recording television broadcasts for later viewing constituted fair use, limited its finding to copies made and then erased, not transferred. See supra note 119. Similarly, routinely backing up a hard disk might be fair use only if the backups were made to preserve data for later use by the owner herself and not for transfer.
223 See Kahle et al., supra note 210, at 4.
224 Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 65 Fed. Reg. 64556, 64564–65 (effective Oct. 28, 2000) (to be codified at 37 C.F.R. pt. 201). The exemption applies only to literary works and not to other categories of copyrighted works.
225 Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 65 Fed. Reg. at 64565 (“[T]he Register recommends that Congress consider amending section 1201 to provide a statutory exception for all works . . . that are protected by access control mechanisms that fail to permit access because of . . . obsoleteness.”).
226 17 U.S.C. � 407 (2000). Although deposit is mandatory, failure to deposit does not affect a work’s copyright in any way, though failure to deposit in response to a written demand from the Register of Copyrights can result in fines. Id. � 407(d).
227 Current copyright regulations take preservation concerns into account to some degree in determining what constitutes the “best edition” that must be deposited. Thus, for example, the first criterion for determining the best edition of printed textual matter and other graphic matter is a preference for “[a]rchival-quality rather than less permanent paper.” 37 C.F.R. pt. 202, app. B, at 521 (2002). Preservation concerns are also reflected, though not of primary importance, in determining the “best edition” for other types of material. Id. at 522 (archival quality of paper as criterion in determining best edition of photographs, musical compositions).
228 Slide, supra note 102, at 17, 36–39, 62–68.
229 See Getaped.com Inc. v. Cangemi, 188 F. Supp. 2d 398 (S.D.N.Y. 2002) (holding that public display of Web site by network transmission constituted “publication”); see also U.S. Copyright Office, Library of Congress, Circular 66: Copyright Registration for Online Works 3 (1999) (“The definition of ‘publication’ in the U.S. copyright law does not specifically address online transmission. . . . [T]he Copyright Office asks the applicant . . . to determine whether the work is published or not.”). But see Reese, supra note 119, at 131–32 (arguing that mere transmission over computer networks may not constitute publication).
230 Where deposit copies are in copy-protected format, current Copyright Office regulations require in some circumstances that two copies, rather than one, be deposited, and that the deposit include partial “identifying information” in a format visually perceptible without the aid of a machine or device. See 37 C.F.R. �� 202.19(d)(2)(vii), 202.20(c)(2)(vii), (viii), (xix) (2002). In addition, in determining what constitutes the “best edition” of a machine-readable work that must be deposited with the Library of Congress, Copyright Office regulations expressly prefer copies that are “[n]ot copy-protected rather than copy-protected.” 37 C.F.R. pt. 202, app. B, at 523 (2002).
231 Although libraries might be allowed to circumvent obsolete access controls for certain types of works during certain times if allowed by a triennial rulemaking conducted by the Librarian of Congress, see supra note 224 and accompanying text, such circumvention is likely to be “difficult and time-consuming” in many cases, Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 65 Fed. Reg. 64556, 64565 (effective Oct. 28, 2000), so that having a repository of technology that allows access would probably result in more access to, and migration of, works protected by obsolete formats.
232 John Schwartz, Page by Page History of the Web, N.Y. Times, Oct. 29, 2001, at C3.
233 See Internet Archive, Copyright Policy (Mar. 10, 2001), at http://www.archive. org/about/terms.php.
234 See Schwartz, supra note 232, at C3.