Propertizing Fair Use

*Professor Bell is the Bar Ilan University Faculty of Law and University of San Diego School of Law. Visiting Fellow, Harvard Law School Project on the Foundations of Private Law. Professor Parchomovsky is the Robert G. Fuller Jr. Professor of Law at the University of Pennsylvania School of Law and the Edward Silver Professor at the Hebrew University of Jerusalem. Faculty of Law. The authors are grateful to David Abrams, Shyam Balganesh, Lital Helman, Neil Netanel, Lydia Loren, Jennifer Rothman, Guy Rub, Christopher Yoo, Eyal Zamir and participants at workshops and conferences at the University of Pennsylvania Carey School of Law and Stanford Law School for invaluable comments and criticisms. Isabel Redleaf and Ziqian Tao provided excellent research assistance. Show More

In its current form, fair use doctrine provides a personal defense that applies narrowly to the specific use by the specific user. The recently issued Supreme Court ruling in the landmark case of Google v. Oracle illustrates why this is problematic. While the Court ruled that Google’s use of Oracle’s Java API packages was fair, the ruling does not protect the numerous parties that developed Java applications for the Android operating system; it shelters only Google and Google’s particular use. This is not an isolated problem; the per use/per user rule cuts across fair uses of copyrighted works, and it always leaves follow-on users in the cold. Authors, musicians, documentary filmmakers and media outlets who win fair use cases cannot freely market their works that incorporate fair use content, since their victories do not carry over to other users. Fair use under extant law is a very limited privilege.

This Article proposes a far-reaching reform not only of copyright law as applied to software, but of the fair use doctrine itself. Our proposal consists of three interlocking elements. First, we call for the introduction of a new in rem conception of fair use, under which a fair use ruling would serve as a property remedy that shelters all subsequent users of works who fairly incorporate preexisting materials. Under this new conception, a finding of fair use would run with that new work, like an easement to all other distributors, broadcasters, publishers, performers and others who use it. The introduction of this new type of in rem fair use would result in the division of fair use into two conceptions—one in rem and one in personam—that would co-exist alongside one another. Second, we would grant judges discretion to decide which fair use conception, if any, should be granted in any particular case. Judges would be able to employ the traditional in personam rule, allowing fair use to avail only the specific defendant before it, or they could adopt an in rem fair use ruling, creating a property entitlement that runs with the work embodying the fairly incorporated content. Third, we propose two default rules to assist judges in making their decisions. Specifically, we propose that the default setting of fair use would depend on the type of use being examined. Where the claimed fair use consists of incorporating the protected copyrighted material in a new copyrighted work—such as the Android operating system—the default fair use would be of the in rem variety. However, in all other cases of claimed fair use, the traditional, familiar in personam conception would be the default setting. This approach would create clarity about the status of follow-on fair uses, but permit judges to tailor their rulings case by case.

Implementation of our proposal would yield several significant improvements to the current fair use doctrine. It would permit judges to take account of the potential for future uses of the fair use work, without handcuffing them to a single approach. Moreover, it would increase certainty with respect to the use of copyrighted work by lowering transaction and litigation costs for creators of new works. Finally, the version of fair use we advocate would enhance the use of copyrighted content.

Introduction

Fair use is one of the most celebrated doctrines in the law.¹ 1.See generally 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, 1601 (1982) (unearthing the “structural and economic” considerations in fair use); Wendy J. Gordon & Daniel Bahls, The Public’s Right to Fair Use: Amending Section 107 to Avoid the “Fared Use” Fallacy, 2007 Utah L. Rev. 619, 620 (arguing for the continued use of fair use, in light of its critics); William W. Fisher III, Reconstructing the Fair Use Doctrine, 101 Harv. L. Rev. 1659, 1661 (1988) (criticizing fair use and suggesting reforms); Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005, 156 U. Penn. L. Rev. 549 (2008) (measuring outcomes of fair use cases historically); Pamela Samuelson, Unbundling Fair Uses, 77 Fordham L. Rev. 2537 (2009) (suggesting a typology of fair use cases based on their policy implications); Pamela Samuelson, Possible Futures of Fair Use, 90 Wash. L. Rev. 815 (2015) (predicting that fair use will survive in spite of critiques and continue to evolve); Rebecca Tushnet, Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 Yale L.J. 535 (2004) (separating out fair use claims from free speech claims); Michael W. Carroll, Fixing Fair Use, 85 N.C. L. Rev. 1087 (2007) (proposing reforms to fair use in light of its alleged abuses); Matthew Sag, Predicting Fair Use, 73 Ohio St. L.J. 47 (2011) (using empirical methodology to argue that fair use outcomes are more consistent and predictable than they might otherwise be assumed); Jeanne C. Fromer, Market Effects Bearing on Fair Use, 90 Wash. L. Rev. 615 (2015) (exploring the harms and benefits of fair use on markets); Abraham Bell & Gideon Parchomovsky, The Dual-Grant Theory of Fair Use, 83 U. Chi. L. Rev. 1051, 1053 (2016) [hereinafter The Dual-Grant Theory of Fair Use] (“Fair use is a keystone of the law of copyright . . . .”); Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1110 (1990) (“[T]he function of fair use [is] integral to copyright’s objectives . . . .”).Show More It is widely seen as a key component of the law of copyright, balancing the exclusive rights of copyright owners with the public interest in the use and enjoyment of works after their creation.² 2.Stephen McIntyre, Private Rights and Public Wrongs: Fair Use as a Remedy for Private Censorship, 48 Gonz. L. Rev. 61, 64 (2012) (“The ‘fair use’ doctrine . . . balances copyright holders’ rights against the public’s interests in free speech and the dissemination of knowledge, information, and culture.”); Niva Elkin-Koren & Orit Fischman-Afori, Rulifying Fair Use, 59 Ariz. L. Rev. 161, 199 (2017) (“Fair use was first crafted as a legal standard . . . intending to allow courts to reconcile the copyright of authors with the public interest.”).Show More It is not only the most significant and most capacious defense against copyright infringement;³ 3.See The Dual-Grant Theory of Fair Use, supra note 1, at 1053 (“The fair use defense to copyright infringement is perhaps the most frequently raised and litigated defense in the law of intellectual property.”); Carroll, supra note 1, at 1089 (“Fair use is the first and most general of these limitations.”). Unlike other defenses that apply to infringements of specific rights, such as reproduction, public performance, and public display, fair use offers protection against all violations of all rights.Show More it is also, according to the Supreme Court, an indispensable part of the constitutional balance between freedom of speech and protected copyrighted expression.⁴ 4.Golan v. Holder, 565 U.S. 302, 328 (2012); Eldredv.Ashcroft, 537 U.S. 186, 219–20 (2003) (describing fair use as a “built-in First Amendment accommodation[]”); Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985) (“In view of the First Amendment protections already embodied in the Copyright Act’s distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use, we see no warrant for expanding the doctrine of fair use to create what amounts to a public figure exception to copyright.”).Show More Unsurprisingly, the fair use doctrine has attracted considerable academic attention and has been the subject of discussion and debate.⁵ 5.See generally sources supra note 1 (delineating several aspects of fair use discussion).Show More Yet a critical aspect of the doctrine, which goes to the core of the fair use doctrine, has not been analyzed to date.

There is a sharp asymmetry between the design of the exclusive rights granted to authors under the Copyright Act and the design of the fair use defense intended to protect user interests. The asymmetry is found in copyright’s protection of works, as opposed to fair use’s protection of uses. Copyright protects a list of rights in a particular work allocated to the owner of the copyright,⁶ 6.Compare 17 U.S.C. § 106 (2018) (“[T]he owner of copyright under this title has the exclusive rights to do and to authorize any of the following . . . .”), with 17 U.S.C. § 107 (2018) (“[T]he fair use of a copyrighted work . . . is not an infringement of copyright.”).Show More whereas the fair use defense only pertains to a specific use by a particular user.⁷ 7.Julie E. Cohen, The Place of the User in Copyright Law, 74 Fordham L. Rev. 347, 362 (2005) (“In most fair use cases, the identity of the user is known, the use has already been made, and the only question is whether or not it passes muster.”).Show More Put differently, fair use is an agent-specific defense that is analyzed on a use-by-use basis. The fair use defense does not and cannot offer prophylactic immunity for using the work; it does not carry over to similar uses by the same user or identical uses by other users. As a result, the doctrine of fair use is far narrower than is generally appreciated.

To see why this is a problem, consider the Supreme Court’s recent ruling in Google LLC v. Oracle America, Inc.⁸ 8.Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183 (2021). For an important analysis of the Oracle v. Google litigation prior to the Supreme Court’s ruling, see generally Peter S. Menell, API Copyrightability Bleak House: Unraveling and Repairing the Oracle v. Google Jurisdictional Mess, 31 Berkeley Tech. L.J. 1515 (2016).Show More The case concerned Google’s copying of thirty-seven packages, comprising roughly 11,500 lines of code, in Java’s Application Programming Interface for use in the programs used by Android phones.⁹ 9.Oracle, 141 S. Ct. at 1204.Show More (Application Programming Interfaces, or APIs, can be defined for simplicity’s sake as code orders that enable interfaces between programs.)¹⁰ 10.SeeUnited States v. Microsoft Corp, 253 F.3d 34, 53 (D.C. Cir. 2001) (“Operating systems also function as platforms for software applications. They do this by ‘exposing’ . . . routines or protocols that perform certain widely-used functions. These are known as Application Programming Interfaces, or ‘APIs.’”).Show More Oracle claimed that Google violated its copyright in the API and the Java commands contained therein.¹¹ 11.Oracle, 141 S. Ct. at 1194.Show More In its defense, Google claimed that the commands were insufficiently original to warrant copyright protection,¹² 12.See id.Show More and that even if the commands were sufficiently original, other doctrines blocked copyright protection.¹³ 13.See id.Show More The trial court held for Google, finding that the commands were insufficiently original and generally outside of copyright protection.¹⁴ 14.Id.Show More However, the Federal Circuit Court of Appeals reversed, determining that Java’s API is copyrighted, and remanded the case to the trial court for examination of Google’s fair use defense.¹⁵ 15.Id. at 1194–95.Show More Back in the trial court, Google claimed that its use of the Java commands in the programming language for Android phones was a fair use,¹⁶ 16.Id. at 1195.Show More and again Google won at the trial level.¹⁷ 17.Id.Show More Once more, the Federal Circuit Court of Appeals reversed the jury decision and ordered the trial court to proceed to the remedies phase.¹⁸ 18.Id.Show More Before the trial court could take up the question of remedies, the Supreme Court granted certiorari and reversed the Federal Circuit Court of Appeal’s decision. The Supreme Court held that Google’s copying of the API was a protected fair use, while assuming arguendo that the API was copyrightable.¹⁹ 19.Id. at 1186.Show More

In ruling that Google’s copying of thirty-seven Java packages from Oracle’s API was a fair use, the Court cleared the way for Google to continue using the copied Oracle software. However, the Court did not consider whether programmers for Android phones could use Google’s software, even though such programmers would thereby necessarily copy, in part, Oracle’s software.²⁰ 20.SeeHorace G. Ball, The Law of Copyright and Literary Property 260 (1944) (“Fair use is technically an infringement of copyright, but is allowed by law on the ground that the appropriation is reasonable and customary.”); Ned Snow, The Forgotten Right of Fair Use, 62 Case W. Res. L. Rev. 135, 141 (2011) (“Fair use now represents an excuse to justify infringement, or in other words, an exception to the norm of speech suppression through copyright.”).Show More Importantly, as the Court noted, all fair use rulings are case by case.²¹ 21.Oracle, 141 S. Ct. at 1198.Show More Other companies that duplicated part of the thirty-seven packages that Google had copied in order to program for the Android phone could not be sure that their use of the Java commands would be considered a fair use. The fair use approved by the Supreme Court is Google’s use, not that of any other user. Indeed, even Google could not be sure that any future Google use of Oracle’s API would be permitted. Google can only be confident that the particular uses considered in the case were fair uses; any other use of the Java commands in a different program or use of different commands in the Java API in the same program would potentially be vulnerable to an infringement suit.

A similar problem arises in other contexts, from music to literature. 2 Live Crew famously won a Supreme Court victory in Campbell v. Acuff-Rose Music, Inc. on a claim of fair use, allowing it to continue to use portions of the melody of Roy Orbison’s song “Oh Pretty Woman” in its parody “Pretty Woman.”²² 22.510 U.S. 569, 571–72 (1994).Show More However, a different user who wishes to use 2 Live Crew’s song in another context—for example, by incorporating it as background music in a film or performing the song at a high school dance—is barred from doing so, even if she were to secure permission from 2 Live Crew.²³ 23.The industry practice for obtaining licenses for musical performance is sufficiently well-developed and complex that the would-be user would likely be able to obtain the relevant licenses without direct communication with either Campbell (who owns the rights to 2 Live Crew’s song) or Acuff-Rose (who owns the rights to Orbison’s). For purposes of our example, we ignore the industry practice.Show More The Supreme Court’s ruling that 2 Live Crew’s use is fair does not mean that the subsequent use would be deemed fair too. Similarly, if a screenwriter wanted to produce a movie based on Alice Randall’s book, The Wind Done Gone, and she properly purchased rights from Alice Randall, she would not be readily able to embark upon this task. Although Alice Randall’s use of Margaret Mitchell’s Gone with the Wind was ruled to be fair,²⁴ 24.See Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1277 (11th Cir. 2001) (concluding that “a viable fair use defense is available” for The Wind Done Gone’s potential infringement of Suntrust’s copyright in Gone with the Wind).Show More every subsequent user of her work would be exposed to an infringement claim, unless she secured a license from the owners of Gone with the Wind who, as one may recall, refused to license Alice Randall’s use. Fair use findings are in personam; they only pertain to a specific user. Copyright protection, by contrast, is in rem; it avails against the rest of the world.²⁵ 25.SeeAbraham Bell & Gideon Parchomovsky, Reconfiguring Property in Three Dimensions, 75 U. Chi. L. Rev. 1015, 1032 (2008)(“[P]roperty rights, as defined by the government, are rights in rem, which avail against the world . . . .”);Guy Pessach, Toward A New Jurisprudence of Copyright Exemptions, 55 Intell. Prop. L. Rev. 287, 291 (2015) (“Copyright owners’ entitlements are in rem exclusive property rights . . . owners have the right to exclude the rest of the world from utilizing their copyrighted works for uses that fall within their bundle of exclusive uses.”).Show More This creates a vast amount of uncertainty.

In this Article, we propose a dramatic reformation of the fair use doctrine, consisting of three complementary steps. First, we introduce a new conception of fair use, under which fair use could constitute an in rem, property remedy. This new conception of fair use would supplement, rather than supplant, the existing fair use doctrine. Under the new in rem property conception, a fair use finding would assist not only the particular defendant who raised the fair use defense but also all subsequent users of a work that had been found to fairly incorporate copyright content. Thus, the in rem version of fair use would take on the form of a property incident that benefits all future users, and it would therefore enhance the marketability of follow-on works employing the fair use.

Second, we would grant courts the power to decide which conception of fair use, if any, to adopt in each case. Upon a finding of fair use, the judge could adopt either the traditional in personam version or our new in rem version of fair use. Judges would not be required to adopt the in rem version of fair use in every case. In appropriate circumstances, the judge could stick to the traditional approach to fair use, limiting it to the specific user and the specific use. The upshot of our proposal would be a legal menu with three options: denying fair use, finding an in personam fair use, or finding an in rem fair use.

Third, we propose a set of default rules for all fair use cases. Where judges choose not to specify whether their finding of fair use is of the in personam or in rem variety, we propose that default rules make that decision. However, the default setting of fair use would depend on the type of use being examined. Specifically, where the claimed fair use consists of incorporating the protected copyrighted material in a new copyrighted work—such as the Android operating system, or the “Pretty Woman” song—the default fair use would be of the in rem variety. In such cases, if the judge failed to specify otherwise, future users of the fair use follow-on work could utilize that work without having to relitigate the issue of infringement with the owner of the original copyrighted work. However, in all other cases of claimed fair use, the traditional, familiar in personam conception of fair use would be the default setting. This set of default rules would create clarity about the status of follow-on fair uses, but permit judges to tailor their rulings case by case.

We propose that the result of a successful invocation of an in rem fair use defense should create effects like those in the world of property. Under our suggested interpretation, where the judge chooses the in rem variety of fair use, a fair use ruling in favor of any particular user would continue to run with the work for the benefit of subsequent users with respect to the relevant content covered by the ruling. Specifically, any unlicensed incorporation of copyrighted material that was ruled a fair use would be seen as creating a permanent copyright defense that runs with the work, akin to a property easement. Were a court to rule that a particular user made fair use of a preexisting work, subsequent users of the follow-on work that was found to fairly use preexisting material would also be protected by the ruling. These subsequent users could utilize the preexisting material in the follow-on work with assurance that their use too would be deemed fair. For example, if Google’s use of Oracle’s Java APIs were not merely a fair use but an in rem fair use, not just Google but every programmer for Android phones who uses Google’s Android system will be sheltered from liability, even though Android incorporates 11,500 lines of code from Oracle’s API.²⁶ 26.Perhaps due to the litigation, Google ultimately abandoned use of Oracle’s Java API, and later versions of Android did not involve any copying of Oracle’s copyrighted work. Oracle, 141 S. Ct. at 1191. Our comments relate to early versions of Android that still incorporated Oracle’s work. An early ruling in favor of in rem fair use for Google might have left parts of Oracle’s API in the Android program.Show More

Our proposal has three significant advantages relative to extant fair use doctrine. First, our proposal would increase certainty with respect to the use of copyrighted work. Currently, a fair use finding only helps the named defendants in the case. It does not pertain to other users who wish to make the same use of the copyrighted work. Under current law, other users either have to take their chances in court or negotiate a license from the owner.²⁷ 27.See James Gibson, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale L.J. 882, 890 (2007) (stating that since the fair use doctrine is ambiguous and the cost of losing an infringement case is prohibitively high, “even a risk-neutral actor with a good fair use claim would choose to secure a license rather than take the small risk of incurring a severe penalty”).Show More The adoption of our proposal would allow judges in fair use cases to put other potential users on solid ground by allowing them to engage in the same use that was ruled fair. At the same time, our approach would permit tailoring remedies to the needs of the fair use. Judges could take account of the potential for future uses of the fair use work, and deny future in rem employment of a fair use remedy, when appropriate. The default settings of fair use would create clarity about the meaning of fair use decisions in any particular case where the judge chose not to elaborate.

Second, our proposal would potentially lower transaction and litigation costs for creators of new works.²⁸ 28.For discussion, see infraSection I.B.Show More As we explained, current doctrine requires users of works that fairly incorporate materials from preexisting works to negotiate licenses from both the original owner and the fair user or plead their own new fair use in court. Both options are costly. Our proposal potentially alleviates this burden, conserving judicial resources while lowering costs for the parties themselves.

Third, and finally, our proposal would increase the productive use of copyrighted content. The sheltering principle would enable multiple downstream users to create new works that incorporate past works that were found by courts to make fair uses of older works.

The remainder of the Article unfolds in four parts. In Part I, we explain the shortcomings of extant fair use doctrine, focusing on the inherent limitations arising from fair use’s understanding as a personal, use-specific defense to copyright infringement. In particular, we discuss the costs that current fair use jurisprudence imposes on follow-on creators. In Part II, we turn to the world of property, where one finds such doctrines as market overt and the law of easements, which promote the marketability of rights and give use rights an in rem character. In Part III, we draw on our discussion of property law to call for the introduction of a brand-new conception of fair use that would operate as a property incident, in the sense that it would benefit all subsequent users of a work that obtained a fair use status. Finally, in Part IV, we provide an important context for our amended understanding of fair use by showing that other parts of the law of copyright that struggle with similar problems have employed mechanisms that bear a great deal of resemblance to our proposal.

 

1. * Professor, Bar Ilan University Faculty of Law and University of San Diego School of Law. Visiting Fellow, Harvard Law School Project on the Foundations of Private Law. ↑

2. ** Robert G. Fuller Jr. Professor of Law at the University of Pennsylvania School of Law and the Edward Silver Professor at the Hebrew University of Jerusalem. Faculty of Law. The authors are grateful to David Abrams, Shyam Balganesh, Lital Helman, Neil Netanel, Lydia Loren, Jennifer Rothman, Guy Rub, Christopher Yoo, Eyal Zamir and participants at workshops and conferences at the University of Pennsylvania Carey School of Law and Stanford Law School for invaluable comments and criticisms. Isabel Redleaf and Ziqian Tao provided excellent research assistance. ↑

3. See generally 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, 1601 (1982) (unearthing the “structural and economic” considerations in fair use); Wendy J. Gordon & Daniel Bahls, The Public’s Right to Fair Use: Amending Section 107 to Avoid the “Fared Use” Fallacy, 2007 Utah L. Rev. 619, 620 (arguing for the continued use of fair use, in light of its critics); William W. Fisher III, Reconstructing the Fair Use Doctrine, 101 Harv. L. Rev. 1659, 1661 (1988) (criticizing fair use and suggesting reforms); Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005, 156 U. Penn. L. Rev. 549 (2008) (measuring outcomes of fair use cases historically); Pamela Samuelson, Unbundling Fair Uses, 77 Fordham L. Rev. 2537 (2009) (suggesting a typology of fair use cases based on their policy implications); Pamela Samuelson, Possible Futures of Fair Use, 90 Wash. L. Rev. 815 (2015) (predicting that fair use will survive in spite of critiques and continue to evolve); Rebecca Tushnet, Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 Yale L.J. 535 (2004) (separating out fair use claims from free speech claims); Michael W. Carroll, Fixing Fair Use, 85 N.C. L. Rev. 1087 (2007) (proposing reforms to fair use in light of its alleged abuses); Matthew Sag, Predicting Fair Use, 73 Ohio St. L.J. 47 (2011) (using empirical methodology to argue that fair use outcomes are more consistent and predictable than they might otherwise be assumed); Jeanne C. Fromer, Market Effects Bearing on Fair Use, 90 Wash. L. Rev. 615 (2015) (exploring the harms and benefits of fair use on markets); Abraham Bell & Gideon Parchomovsky, The Dual-Grant Theory of Fair Use, 83 U. Chi. L. Rev. 1051, 1053 (2016) [hereinafter The Dual-Grant Theory of Fair Use] (“Fair use is a keystone of the law of copyright . . . .”); Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1110 (1990) (“[T]he function of fair use [is] integral to copyright’s objectives . . . .”). ↑

4. Stephen McIntyre, Private Rights and Public Wrongs: Fair Use as a Remedy for Private Censorship, 48 Gonz. L. Rev. 61, 64 (2012) (“The ‘fair use’ doctrine . . . balances copyright holders’ rights against the public’s interests in free speech and the dissemination of knowledge, information, and culture.”); Niva Elkin-Koren & Orit Fischman-Afori, Rulifying Fair Use, 59 Ariz. L. Rev. 161, 199 (2017) (“Fair use was first crafted as a legal standard . . . intending to allow courts to reconcile the copyright of authors with the public interest.”). ↑

5. See The Dual-Grant Theory of Fair Use, supra note 1, at 1053 (“The fair use defense to copyright infringement is perhaps the most frequently raised and litigated defense in the law of intellectual property.”); Carroll, supra note 1, at 1089 (“Fair use is the first and most general of these limitations.”). Unlike other defenses that apply to infringements of specific rights, such as reproduction, public performance, and public display, fair use offers protection against all violations of all rights. ↑

6. Golan v. Holder, 565 U.S. 302, 328 (2012); Eldred v. Ashcroft, 537 U.S. 186, 219–20 (2003) (describing fair use as a “built-in First Amendment accommodation[]”); Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985) (“In view of the First Amendment protections already embodied in the Copyright Act’s distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use, we see no warrant for expanding the doctrine of fair use to create what amounts to a public figure exception to copyright.”). ↑

7. See generally sources supra note 1 (delineating several aspects of fair use discussion). ↑

8. Compare 17 U.S.C. § 106 (2018) (“[T]he owner of copyright under this title has the exclusive rights to do and to authorize any of the following . . . .”), with 17 U.S.C. § 107 (2018) (“[T]he fair use of a copyrighted work . . . is not an infringement of copyright.”). ↑

9. Julie E. Cohen, The Place of the User in Copyright Law, 74 Fordham L. Rev. 347, 362 (2005) (“In most fair use cases, the identity of the user is known, the use has already been made, and the only question is whether or not it passes muster.”). ↑

10. Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183 (2021).
    For an important analysis of the Oracle v. Google litigation prior to the Supreme Court’s ruling, see generally Peter S. Menell, API Copyrightability Bleak House: Unraveling and Repairing the Oracle v. Google Jurisdictional Mess, 31 Berkeley Tech. L.J. 1515 (2016). ↑

11. Oracle, 141 S. Ct. at 1204. ↑

12. See United States v. Microsoft Corp, 253 F.3d 34, 53 (D.C. Cir. 2001) (“Operating systems also function as platforms for software applications. They do this by ‘exposing’ . . . routines or protocols that perform certain widely-used functions. These are known as Application Programming Interfaces, or ‘APIs.’”). ↑

13. Oracle, 141 S. Ct. at 1194. ↑

14. See id. ↑

15. See id. ↑

16. Id. ↑

17. Id. at 1194–95. ↑

18. Id. at 1195. ↑

19. Id. ↑

20. Id. ↑

21. Id. at 1186. ↑

22. See Horace G. Ball, The Law of Copyright and Literary Property 260 (1944) (“Fair use is technically an infringement of copyright, but is allowed by law on the ground that the appropriation is reasonable and customary.”); Ned Snow, The Forgotten Right of Fair Use, 62 Case W. Res. L. Rev. 135, 141 (2011) (“Fair use now represents an excuse to justify infringement, or in other words, an exception to the norm of speech suppression through copyright.”). ↑

23. Oracle, 141 S. Ct. at 1198. ↑

24. 510 U.S. 569, 571–72 (1994). ↑

25. The industry practice for obtaining licenses for musical performance is sufficiently well-developed and complex that the would-be user would likely be able to obtain the relevant licenses without direct communication with either Campbell (who owns the rights to 2 Live Crew’s song) or Acuff-Rose (who owns the rights to Orbison’s). For purposes of our example, we ignore the industry practice. ↑

26. See Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1277 (11th Cir. 2001) (concluding that “a viable fair use defense is available” for The Wind Done Gone’s potential infringement of Suntrust’s copyright in Gone with the Wind). ↑

27. See Abraham Bell & Gideon Parchomovsky, Reconfiguring Property in Three Dimensions, 75 U. Chi. L. Rev. 1015, 1032 (2008) (“[P]roperty rights, as defined by the government, are rights in rem, which avail against the world . . . .”); Guy Pessach, Toward A New Jurisprudence of Copyright Exemptions, 55 Intell. Prop. L. Rev. 287, 291 (2015) (“Copyright owners’ entitlements are in rem exclusive property rights . . . owners have the right to exclude the rest of the world from utilizing their copyrighted works for uses that fall within their bundle of exclusive uses.”). ↑

28. Perhaps due to the litigation, Google ultimately abandoned use of Oracle’s Java API, and later versions of Android did not involve any copying of Oracle’s copyrighted work. Oracle, 141 S. Ct. at 1191. Our comments relate to early versions of Android that still incorporated Oracle’s work. An early ruling in favor of in rem fair use for Google might have left parts of Oracle’s API in the Android program. ↑

29. See James Gibson, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale L.J. 882, 890 (2007) (stating that since the fair use doctrine is ambiguous and the cost of losing an infringement case is prohibitively high, “even a risk-neutral actor with a good fair use claim would choose to secure a license rather than take the small risk of incurring a severe penalty”). ↑

30. For discussion, see infra Section I.B. ↑

31. Gideon Parchomovsky, Fair Use, Efficiency, and Corrective Justice, 3 Legal Theory 347, 350 (1997) (“The doctrine of fair use originated in the decisions of the English Law and Equity courts.”). ↑

32. 17 U.S.C. § 107 (2018). ↑

33. Id. ↑

34. Id. ↑

35. Stephen B. Thau, Copyright, Privacy, and Fair Use, 24 Hofstra L. Rev. 179, 189 (1995) (“[T]he Court has emphasized . . . that the fourth factor—the impact on the potential market value of the plaintiff’s work—is to receive the most weight.”). ↑

36. Samuelson, Unbundling Fair Uses, supra note 1, at 2540–41. ↑

37. 471 U.S. 539 (1985). ↑

38. Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy 102–03 (2008). ↑

39. See, e.g., Ben Depoorter, Alain Van Hiel & Sven Vanneste, Copyright Backlash, 84 S. Cal. L. Rev. 1251, 1253 (2011) (“Sharing unlicensed copyrighted materials is now a part of teenagers’ everyday lives.”); Madhavi Sunder, IP³, 59 Stan. L. Rev. 257, 263 (2006) (observing that we are living in the “‘Participation Age’ of remix culture, blogs, podcasts, wikis, and peer-to-peer filesharing,” which in turn leads a “new generation [to view] intellectual properties as the raw materials for its own creative acts, blurring the lines that have long separated producers from consumers”); John Tehranian, Infringement Nation: Copyright Reform and the Law/Norm Gap, 2007 Utah L. Rev. 537, 548 (pointing out that digital technology “has enabled unparalleled manipulation and use of creative works by ordinary individuals”). ↑

40. Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1186 (2021); Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1354 (Fed. Cir. 2014) (remanding “for further proceedings on Google’s fair use defense”). ↑

41. See, e.g., Pamela Samuelson & Clark D. Asay, Saving Software’s Fair Use Future, 31 Harv. J.L. & Tech. 535, 536–37 (2018) (“How the Federal Circuit decides Oracle’s appeal of a jury verdict in favor of Google’s fair use defense will have significant implications for future software copyright fair use cases because Oracle, in effect, calls into question the viability of fair use defenses in all API reuse cases (and perhaps in software cases more generally).”). ↑

42. Oracle, 141 S. Ct. at 1193. ↑

43. Id. ↑

44. Id. ↑

45. Id. at 1186. ↑

46. Id. at 1190. ↑

47. Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1347 (Fed. Cir. 2014). ↑

48. Oracle Am., Inc. v. Google Inc., 872 F. Supp. 2d 974, 979 (N.D. Cal. 2012). ↑

49. Id. at 996 & n.7 (citing Pamela Samuelson, Why Copyright Law Excludes Systems and Processes from the Scope of Protection, 85 Tex. L. Rev. 1921, 1921 (2007)); id. at 997, 1001–02. ↑

50. 750 F.3d at 1381. ↑

51. 750 F.3d 1339, cert. denied, 135 S. Ct. 2887 (2015). ↑

52. Oracle Am. Inc. v. Google LLC, 886 F.3d 1179, 1185 (Fed. Cir. 2018). ↑

53. See, e.g., Ieva Giedrimaite, No Allies for Oracle’s Win Against Google, The IPKat (Mar. 25, 2019), https://ipkitten.blogspot.com/2019/03/no-allies-for-oracles-win-against-google.‌html [https://perma.cc/8Q5M-WD2L]. ↑

54. Oracle Am., Inc. v. Google LLC, 886 F.3d 1179, 1211 (Fed. Cir. 2018). ↑

55. Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1186 (2021). ↑

56. Id. at 1204. ↑

57. Google ultimately stopped using the copied code. Android programmers utilizing later versions of the program are therefore shielded from liability to Oracle, despite the limited nature of the fair use defense. Supra note 26. ↑

58. 886 F.3d at 1186–87. ↑

59. 510 U.S. 569, 572 (1994). ↑

60. Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1259 (11th Cir. 2001). ↑

61. Id. at 1277. ↑

62. See generally Peter Jaszi, Copyright, Fair Use and Motion Pictures, 2007 Utah L. Rev. 715, 717–18 (discussing how documentary filmmaking has contributed to “the increasing reliance of motion picture production on the appropriation of reality . . . giv[ing] rise to tensions that have been expressed in terms of conflicts over copyright”). ↑

63. Peter Jaszi et al., Evaluating the Benefits of Fair Use: A Response to the PWC Report on the Costs and Benefits of ‘Fair Use’ 3 (Apr. 15, 2016), https://papers.ssrn.com/sol3/‌papers.cfm?abstract_id=2773646 [https://perma.cc/NB6V-J32A]. ↑

64. See, e.g., Carroll, supra note 1, at 1087 (discussing fair use’s lack of clarity); Jason Mazzone, Administering Fair Use, 51 Wm. & Mary L. Rev. 395, 415 (2009) (noting that fair use fails to give sufficient guidance to users). ↑

65. See, e.g., Yochai Benkler, Siren Songs and Amish Children: Autonomy, Information, and Law, 76 N.Y.U. L. Rev. 23, 59–60 (2001) (“The Supreme Court has held consistently and unanimously that American law explicitly treats intellectual property rights in utilitarian terms . . . .”); William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. Legal Stud. 325, 326 (1989) (emphasizing that one of copyright law’s central goals is to maintain incentives for individuals to produce creative works); Mark A. Lemley, Ex Ante Versus Ex Post Justifications for Intellectual Property, 71 U. Chi. L. Rev. 129, 129 (2004) (same). ↑

66. Abraham Bell & Gideon Parchomovsky, Reinventing Copyright and Patent, 113 Mich. L. Rev. 231, 240–41 (2014) (explaining that copyright law incentivizes the creation of original expressive works by conferring a bundle of exclusive rights on authors). ↑

67. See Diane Leenheer Zimmerman, Copyrights as Incentives: Did We Just Imagine That?, 12 Theoretical Inquiries L. 29, 30 (2011) (“An exclusive right to license or vend the work for a limited time period permits markets for public goods to form.”). ↑

68. The law and economics literature points to a positive correlation between the number of rightsholders and the level of transaction costs. See generally Abraham Bell & Gideon Parchomovsky, Copyright Trust, 100 Cornell L. Rev. 1015, 1060 (2015) (“Multiparty agreements typically involve higher coordination costs and as the number of parties grows, so does the likelihood of an impasse.”). ↑

69. See Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 615 (2d Cir. 2006) (concluding that the defendant’s use of the plaintiff’s “copyrighted images in its book Illustrated Trip is fair use”). ↑

70. It is precisely for this reason that Wendy Gordon listed market failure—including prohibitive transaction costs—as the first prerequisite for recognizing fair use by her lights. See Gordon, Fair Use as Market Failure, supra note 1, at 1614–15, 1627–28. ↑

71. See generally Thomas J. Miceli, The Economic Approach to Law 216–17 (2004) (justifying eminent domain as a mechanism for overcoming holdouts); Steven Shavell, Foundations of Economic Analysis of Law 124 (2004) (discussing the problem of holdouts in the context of government acquisitions of property); Daniel B. Kelly, Acquiring Land Through Eminent Domain: Justifications, Limitations, and Alternatives, in Research Handbook on the Economics of Property Law 344, 345–49 (Kenneth Ayotte & Henry E. Smith eds., 2011) (same). ↑

72. Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity 187 (2004). ↑

73. See generally Leval, supra note 1, at 1106 (“Judges do not share a consensus on the meaning of fair use.”). ↑

74. See, e.g., Dan L. Burk, Muddy Rules for Cyberspace, 21 Cardozo L. Rev. 121, 140 (1999) (“[F]air use appears to be employed in situations of high transaction costs, where a muddy entitlement may be appropriate . . . . The ‘muddy’ four-part balancing standard of fair use allows courts to reallocate what the market cannot.”). ↑

75. Gideon Parchomovsky & Kevin A. Goldman, Fair Use Harbors, 93 Va. L. Rev. 1483, 1486 (2007) (“The Supreme Court’s decision to favor ex post fairness over ex ante certainty comes at a steep cost for potential users of copyrighted works.”). ↑

76. See, e.g., John E. Calfee & Richard Craswell, Some Effects of Uncertainty on Compliance with Legal Standards, 70 Va. L. Rev. 965, 995 (1984) (noting that when the “probability [of liability] declines as defendants take more care, then defendants may tend to overcomply”); Richard Craswell & John E. Calfee, Deterrence and Uncertain Legal Standards, 2 J.L. Econ. & Org. 279, 280 (1986) (arguing that overcompliance is a common effect of some types of uncertain rules); A. Mitchell Polinsky & Steven Shavell, Punitive Damages: An Economic Analysis, 111 Harv. L. Rev. 869, 873 (1998) (observing that “if injurers are made to pay more than for the harm they cause, wasteful precautions may be taken . . . and risky but socially beneficial activities may be undesirably curtailed”). ↑

77. 17 U.S.C. § 504(a)(1) (2018) (stating that a copyright infringer is, by default, liable for any of “the copyright owner’s actual damages and any additional profits of the infringer”). ↑

78. 17 U.S.C. § 504(c)(2) (2018). ↑

79. See, e.g., UMG Recordings v. MP3.com, Inc., No. 00-CIV-472, 2000 WL 1262568, at *6 (S.D.N.Y. Sept. 6, 2000) (finding MP3.com liable for approximately $118 million in statutory damages); see also J. Cam Barker, Note, Grossly Excessive Penalties in the Battle Against Illegal File-Sharing: The Troubling Effects of Aggregating Minimum Statutory Damages for Copyright Infringement, 83 Tex. L. Rev. 525, 545–49 (2004) (pointing out the punitive nature of statutory damages in copyright law). ↑

80. Gibson, supra note 27, at 887–95. ↑

81. See id. ↑

82. Supra Part I. ↑

83. See John G. Sprankling, Understanding Property Law 3–4 (4th ed. 2017) (noting that most people think of property as “things”); Henry E. Smith, Property as the Law of Things, 125 Harv. L. Rev. 1691, 1693–94 (2012); Yun-chien Chang & Henry E. Smith, An Economic Analysis of Civil Versus Common Law Property, 88 Notre Dame L. Rev. 1, 4 (2012); Eric R. Claeys, Property 101: Is Property a Thing or a Bundle?, 32 Seattle U. L. Rev. 617, 618 (2009); Thomas W. Merrill & Henry E. Smith, Property: Principles and Policies 1 (3d ed. 2017). See generally Abraham Bell & Gideon Parchomovsky, A Theory of Property, 90 Cornell L. Rev. 531, 576 (2005) (noting that the “popular imagination” continues to associate the idea of property with things). ↑

84. Chang & Smith, supra note 81, at 23. ↑

85. Merrill & Smith, supra note 81, at 982–89. Easements can also be negative. A negative easement entitles the holder to prevent a certain use of the parcel to which the easement applies. Traditionally, the common law recognized only four negative easements: (1) blocking windows, (2) interfering with air flow in a defined channel, (3) removing artificial support for buildings, and (4) interfering with the flow of water in an artificial channel. See Jesse Dukeminier, James E. Krier, Gregory S. Alexander & Michael H. Schill, Property 736 (6th ed. 2006). ↑

86. John H. Pearson, Easement Defined, in 7 Thompson on Real Property § 60.02 (David A. Thomas ed., 1994) (“[A]n easement is one of several ways in which one may obtain rights in the land of another, for the benefit of one’s own property or for one’s own personal benefit.”). ↑

87. Merrill & Smith, supra note 81, at 983; Susan F. French, Toward a Modern Law of Servitudes: Reweaving the Ancient Strands, 55 S. Cal. L. Rev. 1261, 1264 (1982). ↑

88. Pearson, supra note 84, at § 60.07(a) (“The very nature of an easement, and a major point justifying its existence, is to guarantee that an arrangement for the non-possessory use of land survives the transfer of that land into the hands of another.”). ↑

89. Id. ↑

90. Indeed, English law originally refused to recognize the validity of easements in gross. French, supra note 85, at 1267–68. ↑

91.  Property law also recognizes easements in gross. Unlike appurtenant easements, easements in gross do not attach to the land and do not run with the title to it. Rather, they are personal in nature and benefit particular individuals. In our previous example, Beatrice could have made the easement personal to Alice, rendering it an easement in gross. In such a case, the easement would continue to benefit Alice even if she sold her title to Blackacre and moved elsewhere, but it would not automatically benefit Danielle who purchased title to Blackacre from Alice. In the past, easements in gross were considered non-transferrable. This is no longer the case. Under modern property law, even easements in gross are transferable. See Dukeminier et al., supra note 83, at 714–16. ↑

92. 18 N.E.2d 362, 362–64 (1938). ↑

93. Merrill & Smith, supra note 81, at 988. ↑

94. See generally Pearson, supra note 84, at § 60.02(e)(4) (“The conservation easement is a negative easement that prevents the fee owner from making use of the land in ways that would compromise its preservation”); Jeffrey A. Blackie, Note, Conservation Easements and the Doctrine of Changed Conditions, 40 Hastings L.J. 1187, 1193–94 (1989). ↑

95. See generally Pearson, supra note 84, at § 60.02(a) (noting that an easement “[m]ay involve the right to act upon the land of another”); J.B. Ruhl, The “Background Principles” of Natural Capital and Ecosystems Services—Did Lucas Open Pandora’s Box?, 22 J. Land Use & Env’t L. 525, 534 (2007) (noting that the four types of traditionally recognized negative easements were: “the rights to stop other landowners from (1) blocking one’s windows, (2) interfering with the flow of air in a defined channel, (3) removing artificial support for buildings, and (4) interfering with the flow of water in an artificial channel”). ↑

96. Merrill & Smith, supra note 81, at 983. ↑

97. See William B. Stoebuck & Dale A. Whitman, The Law of Property 472, 475 (3d ed. 2000); Merrill & Smith, supra note 81, at 982–83, 986. ↑

98. Tulk v. Moxhay (1848) 41 Eng. Rep. 1143 (Ch). ↑

99. Id. ↑

100. Note, Equitable Restrictions in Land and Tulk v. Moxhay in Virginia, 39 Va. L. Rev. 703 (1953). ↑

101. See Jonathan D. Ross-Harrington, Property Forms in Tension: Preference Inefficiency, Rent-Seeking, and the Problem of Notice in the Modern Condominium, 28 Yale L. & Pol’y Rev. 187, 192 (2009) (“Condominiums, like all common-interest communities, are distinguished by their complex system of servitudes and the governance structure designed to amend and enforce the applicable covenants.”). ↑

102. See Abraham Bell & Gideon Parchomovsky, Governing Communities by Auction, 81 U. Chi. L. Rev. 1, 5 (2014) (noting that “[i]n homeowners’ and condominium associations, the servitudes are generally aggregated in a large document called the covenants, conditions, and regulations (CCR)”). ↑

103. See, e.g., Villa Milano Homeowners Ass’n v. Il Davorge, 102 Cal Rptr. 2d 1, 6 (Cal. Ct. App. 2000) (“[A] major distinction between the typical adhesion contract and CC&R’s is that, once the homeowners have made their purchases, they ordinarily have the collective power to amend the CC&R’s to suit their changing needs. (Civ. Code, § 1355.) This is because the CC&R’s, unlike most contracts, establish a system of governance.”). ↑

104. See generally Pearson, supra note 84, at § 60 (describing the law of easements). ↑

105. See J.G. Pease, The Change of the Property in Goods by Sale in Market Overt, 8 Colum. L. Rev. 375, 375 (1908) (“‘Market overt’ means a public market . . . .”). ↑

106. See Harold R. Weinberg, Markets Overt, Voidable Titles, and Feckless Agents: Judges and Efficiency in the Antebellum Doctrine of Good Faith Purchase, 56 Tul. L. Rev. 1, 3 (1981) (describing the market overt doctrine). ↑

107. Edward M. Swartz, The Bona Fide Purchaser Revisited: A Comparative Inquiry, 42 B.U. L. Rev. 403, 404 (1962). ↑

108. See generally Deborah A. DeMott, Artful Good Faith: An Essay on Law, Custom, and Intermediaries in Art Markets, 62 Duke L.J. 607, 609 (2012) (“In the United States, long-standing rules of property and commercial law embody the nemo dat quod non habet principle—no one can give what one does not have—with the consequence that a thief cannot convey good title, not even when stolen property passes through the hands of an intermediary to a good-faith purchaser.”). ↑

109. See Alan Schwartz & Robert E. Scott, Rethinking the Laws of Good Faith Purchase, 111 Colum. L. Rev. 1332, 1334 (2011). ↑

110. Shyamkrishna Balganesh, Copyright and Good Faith Purchasers, 104 Cal. L. Rev. 269, 277 (2016) (“The market overt doctrine sought to protect purchasers who bought their goods from sellers in ‘open’ fairs and markets, which formed the principal channel for trade during the time.”); see also Pease, supra note 103, at 375 (describing the common law rule). ↑

111. See generally Weinberg, supra note 104. ↑

112. U.C.C. § 2-403(1)–(2) (amended 1988); see also Grant Gilmore, The Good Faith Purchase Idea and the Uniform Commercial Code: Confessions of a Repentant Draftsman, 15 Ga. L. Rev. 605, 616–17 (1981) (discussing § 2-403). ↑

113. U.C.C. § 2-403(2). ↑

114. Id. § 2-403(3). ↑

115. Id. § 2-403(1). ↑

116. Id. ↑

117. For discussion see Gilmore, supra note 110, at 608–20. One classic type of voidable title that is clearly part of the common law and the UCC rule is a case where someone acquires defective title through a fraud in inducement such as payment by a bad check. Consider, for instance, the case of Kotis v. Nowlin Jewelry. Nowlin Jewelry, the original owner of a watch, sold it to Sitton for a check that was ultimately dishonored by the bank due to insufficient funds. Before Nowlin Jewelry discovered that the check was bad, Sitton sold the watch to Kotis. When the check was dishonored, Nowlin Jewelry sought to recover the watch on the grounds that Sitton had never acquired good title due to his fraud, and that Kotis, therefore, could not acquire good title from Sitton. Kotis, however, claimed that he had acquired good title to the watch because Sitton’s title, while defective, was “voidable,” and that Kotis therefore acquired good title as a good faith purchaser for value. The court decided that Sitton’s title was voidable and that a good faith purchaser could therefore take good title. The court reasoned that Nowlin Jewelry had intended to sell the watch to Sitton, and was deceived only about the validity of the payment. Sitton had therefore committed a “fraud in the inducement,” which is a type of fraud that leads to the defrauding acquiror obtaining voidable title. Unfortunately for Kotis, the court also determined that Kotis was not a good faith purchaser, and Nowlin Jewelry prevailed notwithstanding Kotis’s victory on the issue of voidable title. Kotis v. Nowlin Jewelry, Inc., 844 S.W.2d 920 (Tex. Ct. App. 1992). ↑

118. Merrill & Smith, supra note 81, at 895–99. ↑

119. Jesse Dukeminier, James E. Krier, Gregory S. Alexander, Michael H. Schill & Lior Jacob Strahilevitz, Property 662 (9th ed. 2018) (“[R]ecording acts have the function of protecting purchasers for value and lien creditors against prior unrecorded interests.”). ↑

120. Id. at 662–63. ↑

121. Id. at 682–85 (discussing different types of recording acts). ↑

122. Id. ↑

123. Id. ↑

124. E.g., Sun Valley Land & Minerals, Inc. v. Burt, 853 P.2d 607, 613 (Idaho Ct. App. 1993). ↑

125. M.J. Higgins, The Transfer of Property Under Illegal Transactions, 25 Modern L. Rev. 149, 149 (1969). While the shelter rule provides wide protection for the good faith purchaser, that protection is not prophylactic. One standard exception to the shelter rule is called the “original owner exception.” It provides that “when a good faith purchaser obtains the property from a grantor who had notice of an outstanding interest in the property, the shelter rule does not apply if the property is reconveyed to the grantor.” Strekal v. Espe, 114 P.3d 67, 74 (Colo. App. 2004). To illustrate this, let us return to our prior example in which Celeste conveys Blackacre first to Darlene and then to Elsa, and Elsa acquires good title due to the recording act. If Elsa sells Blackacre to the innocent Francine, Francine will enjoy the benefit of the shelter rule, and she too will be considered the owner of Blackacre with good title. If, however, Elsa sells Blackacre to Celeste, Celeste will not be able to take advantage of the shelter provided by Elsa’s recorded good faith purchase, and she will not be able to reacquire title from Elsa. A second exception to the shelter rule is when the benefiting party from the recording act then conveys to a new purchaser “who is guilty of violating a trust or duty with respect to the property.” Id. at 74. ↑

126. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984). ↑

127. Id. at 454–55 (“[H]ome time-shifting is fair use.”). ↑

128. Universal City Studios v. Sony Corp. of Am., 480 F. Supp. 429, 432–33 (C.D. Cal. 1979). ↑

129. See Jarosz v. Palmer, 766 N.E.2d 482, 487 n.3 (Mass. 2002) (dividing res judicata law into issue preclusion and claim preclusion). ↑

130. See Gramatan Home Invs. Corp. v. Lopez, 386 N.E.2d 1328, 1331 (N.Y. 1979) (explaining that issue preclusion is necessary “to conserve judicial resources by discouraging redundant litigation”). ↑

131. Id. ↑

132. See, e.g., Lewis A. Grossman, The Story of Parklane: The “Litigation Crisis” and the Efficiency Imperative, in Civil Procedure Stories 387, 390–91 (Kevin M. Clermont ed., 2004). ↑

133. 122 P.2d 892, 894 (Cal. 1942). ↑

134. 402 U.S. 313, 313, 350 (1971). ↑

135. Id. at 347, 350; see also Gideon Parchomovsky & Alex Stein, Intellectual Property Defenses, 113 Colum. L. Rev. 1483, 1512 (2013) (classifying patent invalidation as a general in rem defense). ↑

136. 439 U.S. 322 (1979). ↑

137. Id. at 331. ↑

138. Steven P. Nonkes, Reducing the Unfair Effects of Nonmutual Issue Preclusion Through Damages Limits, 94 Cornell L. Rev. 1459, 1467–68 (2009). ↑

139. For review, see id. at 1469–75. ↑

140. For discussion of transaction and litigation costs, see supra Section I.B. ↑

141. Supra Part I. ↑

142. For a different proposed approach to follow-on works, as part of a comprehensive approach to copyright improvements, see Mark A. Lemley, The Economics of Improvement in Intellectual Property Law, 75 Tex. L. Rev. 989, 992 (1997). ↑

143. See infra Section IV.B. ↑

144. See id. ↑

145. Statute of Anne, 1710, 8 Ann., C. 19 (Eng.) (establishing what is commonly understood to be the first legal copyright protection). ↑

146. Copyright Act of 1976, 17 U.S.C. § 302(a). ↑

147. Avishalom Tor & Dotan Oliar, Incentives to Create Under a “Lifetime-Plus-Years” Copyright Duration: Lessons from a Behavioral Economic Analysis for Eldered v. Ashcroft, 36 Loy. L.A. L. Rev. 437, 437–48 (2002) (discussing the incentive effects of the move to a single fixed term in the 1976 Copyright Act). ↑

148. See id. at 450 n.39 (surveying the history of copyright protection terms under various copyright acts). ↑

149. Copyright Act of 1909, 17 U.S.C. § 24 (1970). ↑

150. Id. ↑

151. Id. ↑

152. See 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 9.01 (Matthew Bender ed., 2021) (reviewing the history of the copyright terms). ↑

153. Id. § 9.05. ↑

154. Copyright Renewal Act of 1992, Pub. L. No. 102-307, 106 Stat. 264 (1992). ↑

155. Nimmer & Nimmer, supra note 150, at § 9.05. ↑

156. See, e.g., G. Ricordi & Co. v. Paramount Pictures, Inc., 189 F.2d 469, 471 (2d Cir. 1951) (holding the renewal right “creates a new estate, and the few cases which have dealt with the subject assert that the new estate is clear of all rights, interests or licenses granted under the original copyright”). ↑

157. Copyright Act of 1909, 17 U.S.C. § 24 (1970). ↑

158. See Seymour M. Bricker, Renewal and Extension of Copyright, 29 S. Cal. L. Rev. 23, 24 (1955) (outlining the history of copyright renewal and ownership rights in the common law). ↑

159. Fred Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643, 659 (1943). ↑

160. Id. ↑

161. See, e.g., De Sylva v. Ballentine, 351 U.S. 570, 573 (1956) (“The statute is hardly unambiguous, however, and presents problems of interpretation not solved by literal application of words as they are ‘normally’ used.”). ↑

162. Copyright Act of 1909, 17 U.S.C. § 24 (1970). ↑

163. See Jeffrey M. Lowy, When Does the Renewal Term Vest: Before and After the Copyright Renewal Act of 1992, 13 Loy. L.A. Ent. L. Rev. 437, 438–40 (1993). ↑

164. 551 F.2d 484 (2d Cir. 1977). ↑

165. Id. at 486. ↑

166. Id. ↑

167. Id. ↑

168. Id. ↑

169. Id. ↑

170. Id. at 487. ↑

171. Id. at 492–94. ↑

172. Id. ↑

173. Nimmer & Nimmer, supra note 150, at § 3.07. ↑

174. 495 U.S. 207 (1990). ↑

175. Id. at 211–12. ↑

176. Id. at 212. ↑

177. Id. ↑

178. Id. ↑

179. Id. ↑

180. Id. ↑

181. Id. at 212–14. ↑

182. Id. at 223–24. ↑

183. Id. at 228. ↑

184.  Copyright Renewal Act of 1992, Pub. L. No. 102-307, 106 Stat. 264 (codified as amended 17 U.S.C. § 102(a)(4)(A)). ↑

185. 17 U.S.C. § 304(a)(4)(A). ↑

186. See Lowy, supra note 161, at 468–69 (“The main purpose of the Copyright Renewal Act of 1992 is to provide a system of automatic renewal of copyrights.”). ↑

187. Id. ↑

188. Id. at 473. ↑

189. Copyright Act of 1976, 17 U.S.C. § 302(a). ↑

190. Lowy, supra note 161, at 471–72. ↑

191. 17 U.S.C. § 203(a). ↑

192. Id. §§ 203(a), 304(c)–(d). ↑

193. See, e.g., Kristelia A. García and Justin McCrary, A Reconsideration of Copyright’s Term, 71 Ala. L. Rev. 351 (2019) (noting that “[l]ike termination rights, rights reversion gives the creator a second bite of the apple by reversing an artist’s original transfer of copyright ownership, thereby transferring ownership over a work’s copyright back from an intermediary to the original artist”). ↑

194. Lydia Pallas Loren, Renegotiating the Copyright Deal in the Shadow of the “Inalienable” Right to Terminate, 62 Fla. L. Rev. 1329, at 1345–46 (2010). ↑

195. See Nimmer & Nimmer, supra note 150, at § 11.02[A][3]. ↑

196. Sonny Bono Copyright Term Extension Act, Pub. L. No 105-298, 112 Stat. 2827 (1998). ↑

197. Cf. Marvel Characters, Inc. v. Kirby, 726 F.3d 119, 124 (2d Cir. 2013) (concerning attempted termination by the children of comic book artist Jack Kirby of transfer to Marvel of rights in characters such as Spider-Man, the Fantastic Four, and the X-Men); Siegel v. Warner Bros. Ent. Inc., 542 F. Supp. 2d 1098, 1114 (C.D. Cal. 2008) (concerning attempted termination by Superman creators Jerry Siegel and Joe Shuster of transfer of rights to Superman). ↑

198. Copyright Act of 1976, 17 U.S.C. § 304(c)(6)(A). ↑

199. Pub. L. No. 100-568, 102 Stat. 2853 (1988). ↑

200. Pub. L. No. 103-465, 108 Stat. 4976 (1994). ↑

201. Tung Yin, Reviving Fallen Copyrights: A Constitutional Analysis of Section 514 of the Uruguay Round Agreements Act of 1994, 17 Loy. L.A. Ent. L.J. 383, 384 (1997). ↑

202. See Nimmer & Nimmer, supra note 150, at § 9A.04[A][1][a]. ↑

203. Id. §§ 7.02–7.03. ↑

204. Copyright Act of 1976, 17 U.S.C. § 104A. ↑

205. Id. ↑

206. Id. § 104A(d)(3)(A) (“[A] reliance party may continue to exploit that derivative work for the duration of the restored copyright if the reliance party pays to the owner of the restored copyright reasonable compensation for conduct which would be subject to a remedy for infringement . . . .”). ↑

207. Id. § 104A(d)(2)(B) (outlining a twelve-month grace period for reliance parties beginning on the date notice is given of intent to restore a copyright). ↑

208. Id. ↑

209. Copyright Act of 1976, 17 U.S.C. § 104A(d)(2)(B). ↑

210. Id. § 104A(d)(3). ↑

211. Id. ↑