Copyright essentialism and the performativity of remedies.
Although constitutional remedies scholarship provides useful tools--largely absent from copyright scholarship--for discussing the rights/remedies interrelationship, it provides little guidance as to why a particular combination is deployed in a particular case. (133) Poststructural theories of performativity and temporality, however, have the potential to link the chronological and conceptual interplay between rights and remedies to deeper normative commitments of copyright adjudication.
As explained above, the copyright field has largely overlooked the last of Levinson's rights/remedy relationships: "remedial deterrence," which both accounts for the "split-the-baby" dynamic discussed below under the eBay/Salinger standard and, not coincidentally, happens to be the most overtly countersequential in Levinson's taxonomy. A court's awareness of the real-world future consequences of its ruling on the merits--that is, its remedial decision--influences that "earlier" merits ruling in a manner rendered invisible by the rights essentialists' two-step process of adjudication. (134) An essentialist view of rights, whether in copyright or constitutional law, has the potential to shield the pragmatism and policy considerations at play in the articulation of rights, and the unidirectional rights [right arrow] remedies sequence "legitimate[s] and protect[s]" not just the idealized status of rights but also the normative commitments behind them. (135)
There is something extremely provocative lurking within Levinson's critique of the rights/remedy split, his concern for the opacity and disingenuity of substantive adjudication, and his turn toward countersequentialism as a way of exposing the normative underpinnings of a court's decisions. Although largely couched in the legal realist tradition, in arguing that remedies are not a mere outgrowth of some preceding decision on the merits but instead that the "after" shapes and defines that which happens "before," Levinson's theory rejects the essentialism of rights and suggests the "performativity" of remedies. A particular view of the eventual outcome of a dispute--and a normative belief in how similar parties should engage with one another in the future--sets in motion a series of steps that lead to and justify the ultimate combination of rights/remedies determinations.
A remedy is performative to the extent it brings into existence the substantive right that appears to prefigure and legitimize it. (136) Rather than a remedy being a court's attempt at filtering an idealized right through the pragmatics of real-world implementation, the court's understanding of the law's consequence produces a right that can be implemented in accord with the court's normative sense of justice and fairness. In this sense, Levinson's legal-realist approach to remedies dovetails with queer and poststructural work on performativity. Just as scholars such as Judith Butler push against the distinction between a fixed material body and its gendered social construction, (137) Levinson questions the distinction between a pure constitutional value and its translation into the remedial apparatus. (138) According to Butler, it is a "juridical conception" to culturally inscribe meaning on that which appears to precede the social, political, and discursive, and the exercise of "juridical power" requires the existence of some temporally preexisting phenomenon to will upon and bring into social being. (139) The later-occurring social apparatus produces, and does not merely represent, that which appears to precede it temporally. (140)
Butler's work on offensive speech is particularly instructive. In determining that particular speech is unlawful, a court does not simply identify that speech as being in some fundamental sense offensive or obscene and then decide to deploy its remedial powers in order to censor it. (141) The adjudicative process may create the appearance of some preexisting categories of low-value or unlawful speech that are then censored, but the court is instead producing offensiveness and obscenity--and, as a corollary, nonoffensiveness and nonobscenity--through its power to censor. (142) In a manner closely aligned with Levinson's theories of remedial equilibration, the court shapes and defines freedom of speech through the imposition of a particular remedy. The idea that censorship defines speech, and that remedies define rights, inverts the "temporal relation" commonly associated with the "conventional view" of adjudication. (143) Through this temporal inversion, a court's knowledge of what it is going to do in the future--imprison a deliverer of hate speech, desegregate schools, enjoin a book's publication--reaches "back" and teleologically lays the foundation for its future pronouncements. (144) Viewed through the lens of performativity, the role of remedies is not merely to modulate some preceding identification of rights so as to enhance or diminish that right's real-world impact, but instead to shape rights in order to align with particular social needs and normative beliefs of how disputes like the one at hand should be resolved.
Performativity theory also brings to light the potential for temporal sequencing to effectively reinforce normative preferences. What comes first must be able to stand on its own and be described in a manner that is independent of the description of some later concept, and through this seeming independence, the first-in-time becomes naturalized and normalized. Rights in an essentialist framework can and must be articulated first-in-time as a matter of principle, independent of remedial policy considerations. Accordingly, questions of whether an individual has a right to compensation or assistance of counsel or humane prison conditions stand on their own, pure and untainted. (145) What comes second to this primary concept in turn becomes an extension, "exaggeration," or "diminution" of the normal course. (146) The question of whether someone is entitled to an injunction, to challenge the conditions of her arrest postconviction, or to have a prison cell to herself are merely second-order questions designed to effectuate the first-order right at a certain level of robustness; they are inherently dependent on, but by no means constitutive of, the earlier-identified right. This account, however, denies the interrelatedness of the seemingly earlier-identified right and its real-world implementation in the form of a remedy award. By focusing intellectual energy primarily on this apparently later-in-time real-world implementation, and conceding at least to some degree the existence of a foundational right to compensation, counsel, or humane prison conditions, we shield the assumptions and beliefs that feed into those rights from critique or meaningful engagement. (147) If a denial of an injunction is motivated by the belief that a liability rule adequately balances the interests of the parties and the general public, this policy preference, as well as its potential drawbacks, feeds "backwards" into a finding of infringement while remaining hidden by a forward-moving linear sequence. (148)
Viewing rights as performatively constituted by their remedies accordingly exposes the potential for a reshaping of remedies to further ideologies at odds with the stated motivations for remedy reform. As Butler notes, "[A] performative 'works' to the extent that it draws on and covers over the constitutive conventions by which it is mobilized." (149) These "constitutive conventions" of the performative--in other words, the normative commitments of the regulatory scheme--are obfuscated primarily by the positing of some element-bodily "sex" for Butler, "rights" here--as preceding both language and social construction. If a particular concept is regularly and repeatedly treated as existing independent of ideological, pragmatic, and political consideration, it becomes entrenched as a foundational concept unmarked by the messiness of interpretation and social construction. (150) The problem, though, is that the apparently foundational is actually constructed by that which appears to spring forth from it and accordingly is inseparable from normative considerations. As Levinson has shown in the constitutional context, (151) and as the cases surveyed in the next Section suggest in the intellectual property context, rights determinations cannot be separated from remedial considerations, and the expressly pragmatic considerations of the remedies determination give rise, at least to some degree, to a declaration of a substantive right.
In some ways, the performativity of remedies is nothing new. John Austin, for example, observed the following:
[I]t is perfectly clear that the law which gives the remedy, or which determines the punishment, is the only one that is absolutely necessary. For the remedy or punishment implies a foregone injury, and a foregone injury implies that a primary right or duty has been violated. And, further, the primary right or duty owes its existence as such to the injunction or prohibition of certain acts, and to the remedy or punishment to be applied in the event of disobedience. (152)
In other words, Austin in the nineteenth century, like Levinson in the twentieth, recognized that rights and duties come into being through the imposition of a particular remedy. The concept of performativity in the poststructural tradition, however, digs a layer deeper into the remedial considerations stated by a court and provides theoretical tools for unearthing ideological assumptions potentially at odds with those presented on the surface. What may appear to be--and what may be fully intended as--a vindication of speech and expression rights may instead reflect a commitment to market-oriented individualism at odds with the more communitarian ideals for which speech and expression often serve as proxies. (153) By refusing to take for granted even the most basic of Western cultural assumptions--for example, linear time, male and female sexes, individual autonomy--performativity and deconstructive theory expose key limitations on conventional legal reform and demonstrate how such pursuits can reify some of the very obstacles they confront. (154) As a narrow slice of these broader legal dynamics, the performativity of copyright remedies both problematizes the temporal and conceptual distinction between rights and remedies in service of First Amendment values and provides a normative, ideological dimension to the inherited observation that remedies bring life to rights.
The following two Parts will (1) demonstrate the essentialist moves made by courts in adopting the eBay standard and (2) apply the theoretical insight of remedial and performative theories to expose some of the potentially troubling aspects of this recent shift in copyright law.
IV. Rights Essentialism In Motion: The Reemergence Of The Four-Factor Test
This Part will track the emergence of the eBay standard, its extension to copyright law in Salinger, and the split-the-baby dynamic that appears to have accompanied it. It will illustrate the consistently essentialist approach to remedies these decisions take and will demonstrate that the championing of the First Amendment and related public interests has managed to accompany material expansions of rights-holder entitlements.
A. eBay v. MercExchange
In eBay, the Court seized upon the distinctions between the "creation of a right" and "the provision of remedies for violations of that right" in order to allow equity to cabin some of the troubling consequences of a finding of patent infringement. (155) Drawing heavily from its copyright jurisprudence, (156) the Court replaced the Federal Circuit's "general rule ... that a permanent injunction will issue once [patent] infringement and validity have been adjudged" with the traditional four-part equitable test for a permanent injunction. (157) Although the majority opinion remained silent as to the Court's underlying motivations, Justice Kennedy's concurring opinion explicitly mentioned two problems with the current patent system that a more robust standard for injunctive relief might counter. He pointed to (1) the emergence of an industry in "which firms use patents not as a basis for producing and selling goods but, instead, primarily for obtaining licensing fees"--in other words, patent trolls--and (2) the "potential vagueness and suspect validity" of a "burgeoning number" of business method patents. (158) In Justice Kennedy's view, along with Justices Stevens, Souter, and Breyer, "The equitable discretion over injunctions, granted by the Patent Act, is well suited to allow courts to adapt to the rapid technological and legal developments in the patent system." (159) The four-part equitable test for injunctive relief would accordingly allow a court to deny an injunction to a trolling nonpracticing entity or the holder of a questionable business method patent, notwithstanding that same court's earlier ruling that the challenged conduct was infringing.
Numerous commentators have embraced eBay's shift away from a traditional property rule within the Calabresi-Melamed framework toward a liability rule. (160) Less able to wield the threat of an injunction, patent holders would have fewer incentives to engage in strategic holdout behavior, (161) leading to more efficient licensing negotiations and likely lower licensing fees. eBay accordingly brings considerably greater comfort that the breakdown or infeasibility of advance negotiations will not endanger the ultimate rollout of a financially lucrative and potentially socially valuable project.
Although eBay only specifically formalized a four-part test for permanent injunctive relief in the context of patent law, it has gradually expanded outside of patent law as well as into the preliminary injunction context. (162) The similarities between copyright and patent--for example, both are rooted in Article I, Section 8 of the Constitution and balance public access versus private incentives--make this extension conceptually unproblematic; (163) but for the reasons set forth below, the normative implications are troubling. Because patent law is a purer strict liability regime than copyright, (164) there are fewer opportunities within the patent infringement analysis to incorporate public interest considerations like those set forth in Justice Kennedy's eBay concurrence; accordingly, the structure of patent law to a significant degree forces courts to treat the question of infringement as foundational. (165) In copyright law, by contrast, the fair use inquiry incorporates public interest considerations, and prima facie infringements that trigger serious First Amendment concerns historically were not infringements at all. (166) The eBay standard, when extended to copyright disputes, allows courts to shift important public interest considerations out of the merits determination, easily find infringement, and deal with the broader policy considerations while crafting the appropriate remedy. Although copyright law, particularly through the development of the fair use doctrine, does not mandate an essentialist approach to rights, the eBay standard nonetheless encourages courts to adopt an essentialist posture.
Moreover, at least as conceived by four Justices, the eBay standard was developed with a particular eye to the inefficiencies of the patent system and to curtail some of the well-publicized holdup behavior by industrial patent owners. (167) Although the copyright system certainly presents opportunities for trolling and strategic bargaining, (168) a repeated concern with abuses in the copyright system is the failure to adequately take into account the interests in free speech and a robust public discourse. (169) These are not necessarily concerns with efficiency but instead are ideological commitments to the importance of semiotic engagements not entirely beholden to market dynamics. (170) To the extent that this tension between democracy and efficiency commitments is more pronounced in copyright than in patent, efforts to harmonize the two areas of law have the potential to inadequately protect the nonmarket-based commitments so often prominent in copyright law and scholarship.
B. Salinger v. Colting
In Salinger v. Colting, the Second Circuit shifted from a preliminary injunction standard with a relatively fluid treatment of rights and remedies toward a structured, sequential approach seemingly mandated by eBay. (171) Prior to its decision in Salinger, the Second Circuit employed a "sliding-scale" approach to all preliminary injunctions under which courts in the circuit would consider and balance several equitable considerations. (172) The test in the Second Circuit required plaintiffs to show "(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." (173) Although copyright plaintiffs ostensibly needed to satisfy this same test, a presumption of irreparable harm upon a showing of likely success meant that the Second Circuit "nearly always issued injunctions in copyright cases as a matter of course upon a finding of likelihood of success on the merits." (174) Injunctions may have been relatively common before Salinger, but the presumption of irreparable harm nonetheless kept the court's inquiry focused on the substance of the plaintiffs claims.
In Salinger, the Second Circuit determined that its previous approach to copyright preliminary injunctions was inconsistent with eBay and Winter. (175) Because the district court had simply presumed irreparable harm upon finding a likelihood of infringement, the Salinger panel vacated the injunction and issued step-by-step guidance on how district courts in the circuit should approach the preliminary injunction inquiry. Under the first step, the plaintiff must demonstrate "either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the [plaintiff]'s favor." (176) Under the second step, the plaintiff must show "that he is likely to suffer irreparable injury in the absence of an injunction." (177) Under the third step, "a court must consider the balance of hardships between the plaintiff and defendant." (178) Lastly, "the court must ensure that the 'public interest would not be disserved' by the issuance of a preliminary injunction." (179) This reformulated approach notably reorders the sequence of the court's previous standard, placing a determination of the merits--whether there is a likelihood of success or existence of serious questions--at step one and moving a determination of irreparable harm "down" to step two. The legal rights of the parties and the additional prerequisites to injunctive relief are considered separately, and the determination of rights occurs first. (180)
Even though courts consider the merits of a copyright claim at step one, the Salinger court mentioned the serious First Amendment issues at stake in a copyright preliminary injunction only at steps two, three, and four. At steps two and three, courts must take into account both the defendant's "core First Amendment interest in the freedom to express him or herself" as well as the plaintiffs First Amendment interest in not speaking, (181) Courts may not presume the existence of irreparable harm after eBay, and, citing Justice Kennedy's concurrence, the Salinger court noted that traditional equitable standards help courts "keep pace with innovation in this rapidly changing technological area." (182) At step four, the court stated that (1) "[t]he object of copyright law is to promote the store of knowledge available to the public," (2) "[t]he public's interest in free expression ... is significant and is distinct from the parties' speech interests," and (3) "[e]very injunction issued before a final adjudication on the merits risks enjoining speech protected by the First Amendment." (183) The court noted that in the past it had "rarely considered the public's interest before deciding whether an injunction should issue." (184)
Given the Salinger court's heightened standard for preliminary injunctions and its repeated invocation of the First Amendment, the decision would seem to represent a significant victory for those seeking to better incorporate free speech considerations into copyright law. Salinger materially narrows the availability of injunctive relief in copyright cases, thereby effectuating the goal of several decades of scholarship and advocacy. District courts in the Second Circuit must now expressly take into consideration the free speech interests of both the parties and the public at large before enjoining an allegedly infringing work. A finding of likely infringement no longer necessitates the burning of books, the cancellation of a television show, or the delay of a movie release. Speech may disseminate or remain disseminated, the plaintiff may simply be compensated through monetary relief, and the First Amendment may proceed unoffended by this resolution.
Salinger may be, however, a pyrrhic victory for free speech interests in copyright. Although extolling the importance of considering a variety of First Amendment interests at stake in a copyright preliminary injunction, for the sake of "judicial economy" (185) the Second Circuit affirmed the district court's heavily criticized (186) fair use analysis in a single paragraph. (187) Despite Frederick Colting's "critical intervention" into the legacy of The Catcher in the Rye, (188) and despite fair use's role as a "First Amendment safeguard ," (189) the Second Circuit sanctioned the district court's analysis largely by deferring to its "credibility finding" that criticism was not actually Colting's primary motive. (190) The Salinger decision may have expressly infused the remedial question with considerations of the First Amendment and the public interest, but at the same time the court seemed largely agnostic to how these same concerns factor into the substantive copyright entitlement. Much as the Calabresi-Melamed framework has largely assumed the existence of some predicate entitlement and focused its energies on the question of remedies, (191) Judge Calabresi's Salinger opinion made short shrift of a difficult and important question of copyright infringement in the process of championing steps two through four of the eBay/Winter standard. Denying an injunction in Salinger allowed the court to trumpet the First Amendment in its question of remedies, but its sharp distinction between rights and remedies in effect collapsed the speech/expression concerns at the heart of the case into the question of whether a property rule or liability rule should govern given a finding of infringement.
By laying out a step-by-step inquiry beginning with a determination of the merits and then proceeding to additional remedial concerns, the eBay/Salinger standard places courts in a position in which they opine on the merits of the plaintiffs claim first, (192) likely fully aware that they are about to deny the plaintiffs requested relief. The Salinger approach may allow courts to champion the First Amendment in the process of denying a particular remedy, but the decisional sequence also allows them to expand the substantive reach of copyright to demand compensation from a broader range of actors. Salinger appears to adapt eBay's efficiency concerns in the patent system to the First Amendment concerns in the copyright system, but the ultimate result is that the Salinger test couches a shift to a liability rule in a commitment to robust freedoms for speech and expression.
C. Splitting the Baby
Although the eBay standard is still slowly weaving its way into copyright law, (193) Salinger is neither the only, nor the first,194 decision to take the opportunity to split the baby by ruling favorably for the copyright holder at step one but ruling in defendant's favor at steps two through four and denying the injunction. The sample size remains admittedly small--suggesting that eBay and Salinger may not have revolutionized the adjudication of copyright injunctions (195)--but when faced with difficult questions of fair use or novel questions posed by digital media, the decisions herein lean heavily on the eBay/Salinger standard in order to split the baby and, at least provisionally, resolve these questions in favor of the rights holder. (196) The cases in this Section demonstrate how remedial talk can be deployed in a manner at odds with the motivations of remedy reformers, and they also serve as a cautionary tale for attempting to do transformational copyright advocacy through remedies reform, at least as typically framed.
In Whitmill v. Warner Bros. Entertainment, Inc., the tattoo artist behind Mike Tyson's distinctive facial tattoo sought to preliminarily enjoin the release of The Hangover Part H because it featured a nearly identical facial tattoo on the actor Ed Helms following his character's drunken evening in Bangkok, Thailand. (197) Mike Tyson-and the tattoo on his face--appeared in the first The Hangover film, and there appeared to be a fairly strong argument that the use of the tattoo in the sequel was a comedic reference to the first film, poking fun at Tyson and the arguably ridiculous design permanently emblazoned across his face. Nonetheless, the district court determined that Warner Brothers was unlikely to succeed on its fair use defense. According to the court, "This use of the tattoo did not comment on the artist's work or have any critical bearing on the original composition. ... Any other facial tattoo would have worked as well to serve the plot device." (198) It then proceeded, however, to adopt the eBay standard and deny the requested injunction: "[A]fter eBay and Winter, there is no presumption that simply because there is a finding of likelihood of success on copyright infringement, or even a finding of actual copyright infringement[,] that there must be an injunction." (199) Although the plaintiff established irreparable harm through a loss of control over his work, the court found that Warner Brothers and third-party distributors stood to lose tremendous amounts of money if the film's release were blocked, making an injunction inappropriate under the third and fourth steps. (200) As in Salinger, the disaggregation of infringement from injunction allowed the court to reject a fairly strong assertion of fair use without seemingly offending free speech interests, and tensions between the two halves of the ruling are rendered unproblematic by the rights essentialism employed by the court.
In Capitol Records, LLC v. ReDigi Inc., the district court similarly used the eBay/Salinger standard to deny an injunction to the rights holder while signaling the rights holder's likelihood of success on a problematic infringement claim. (201) Defendant's cloud-based service allowed users to "resell" a music file in a manner approximating the resale of physical media, wherein the seller could no longer access the file upon completion of the transaction. (202) Commentators and amici accordingly noted that the case raised fundamental questions about the applicability of the first-sale doctrine in the digital context, with broad implications for the cloud computing industry. (203) Citing the eBay standard, the court denied plaintiffs requested preliminary injunction due to lack of irreparable harm, reasoning that plaintiffs careful recordkeeping would reasonably permit a calculation of damages. (204) The court announced, however, that "likelihood of success on the merits is something that plaintiffs have demonstrated." (205) Although Judge Sullivan cautioned that he was not finding that plaintiffs "would win," he noted that "there are arguments that on their face look to be compelling or potentially persuasive arguments. They have certainly done a good job of articulating those based on the statute, which I think covers that element." (206) He provided no analysis, however, of why defendant's countervailing first-sale and fair use arguments were unlikely to prevail. The case may ultimately produce a final decision on the merits, but, until then or if the parties settle, Judge Sullivan's provisional rejection is the sole guidance on the important questions raised.
Although the case primarily involved a claim of trademark infringement, the Eleventh Circuit's decision in North American Medical Corp. v. Axiom Worldwide, Inc. presents another example of the eBay standard underwriting essentialist, split-the-baby adjudication. (207) The court in North American Medical vacated a preliminary injunction against defendant's use of plaintiffs mark because the district court relied on the court's pre-eBay presumption of irreparable harm. (208) It upheld, however, the lower court's very questionable likelihood-of-confusion analysis. The court found "actual source confusion" because defendant used plaintiffs mark as a descriptive metatag for its website, and defendant's website appeared second in the Google search results for that mark. (209) This finding was based on a considerable misunderstanding of contemporary search engines, which make little if any use of metatags in determining search relevancy. (210) The Eleventh Circuit was able to cabin the consequences of the district court's highly questionable ruling by invoking the eBay standard, but it did so in a manner signaling liability for a fairly trivial--if not irrelevant--use of a plaintiffs mark.
Limitations on injunctive relief were ostensibly intended to provide better procedural safeguards for socially valuable expression. In the above cases, however, such limitations appear to have shifted the balancing of free speech and public interests away from the merits determination and into the remedy stages, both lowering the costs of finding infringement and seemingly isolating the merits question at the initial, threshold step. The merits and remedies determinations in Salinger, Whitmill, ReDigi, and North American Medical are closely intertwined, but their conceptual disaggregation and a shift in focus to the remedies determination leaves largely unquestioned the questionable predicate determinations of infringement produced by the rights/remedy interplay.
V. WHAT Is THE HARM?
Looking at the rights/remedies relationship through the critical lens of remedial and performative theories reveals two types of troubling drawbacks to the essentialist approach to remedies employed by eBay, Salinger, and their progeny. The cases surveyed in the previous Section--and to a significant extent the scholarship surveyed in Part I--have overlooked the ways in which the framing of copyright remedy reform has the potential to (1) exacerbate distributional consequences of splitting the baby and (2) mask the realignment and reinforcement of industrial copyright norms.
A. Distributional Consequences and Chilling Effects
Although the narrowing of injunctive relief may lead to an expansion of substantive copyright protection, as documented above there are some merits to the eBay and Salinger standards' shift toward a liability rule. Even though the split-the-baby dynamic described above suggests that the shift might be more appropriately characterized as a shift from a relatively weak property rule to a strong liability rule, many of the well-documented advantages of a liability rule would still likely attach under this regime. Large-scale digitization projects could proceed without the need to obtain ex ante permission from every rights holder, (211) multi-million-dollar movie productions could proceed on schedule, and publications like those in the two Salinger cases would not be subject to the veto of unhappy rights holders. For the parties likely involved in these productions and the related licensing transactions, eBay and Salinger are certainly appealing.
There are nonetheless a number of reasons to be troubled by the shift to a liability rule accompanied by an expansion of substantive entitlements. This shift might be welcomed by Hollywood, the publishing industries, and certain large technology companies, but it threatens to burden individuals, nonproflts, documentary and independent filmmakers, and other authors who lack the financial resources to clear the rights for their creative endeavors. (212) Levinson has suggested that "remedies sometimes create a case-selection effect that in turn may influence the development and content of rights," (213) and to the extent that copyright's remedial structure furthers primarily the interests of those with the financial means to litigate, the doctrine that emerges will similarly reflect those interests. The results in each of the cases may ultimately be satisfactory for the respective parties--Whitmill could easily be compensated by a deep-pockets movie studio and Colting could perhaps share some of his proceeds with the Salinger estate (214)--but copyright law nonetheless casts a long shadow over nonindustrial endeavors.215 Particularly given how prominently First Amendment and democratic concerns have factored into remedy reform proposals, the distributional consequences, rights-holder overreach, and moral implications of split-the-baby adjudications caution against a reflexive embrace of eBay and Salinger.
First, by expanding the range of infringing activity and, correspondingly, the circumstances requiring a copyright license, the dynamic described above may further exacerbate wealth-based speech disparities. In many cases, such a quasi-compulsory license regime approximated by a strong liability rule could put an end to nonprofit or noncommercial expression just as effectively as a court-ordered injunction. (216) For example, requiring documentary filmmakers, (217) vidders, (218) or fan fiction writers (219) to pay a "compulsory fee" to reimagine copyrighted works creates a risk of chilling a significant amount of this work. (220) Moreover, to the extent that a liability rule renders private licensing more efficient, and thus more customary, "clearance culture" norms can feed back into the determination of fair use and ultimately restrict the scope of the doctrine. (221) To the extent that eBay and Salinger serve to facilitate industrial copyright licensing at the expense of fair use, they also serve to shift creative resources away from smaller-scale users of intellectual property. (222)
Second, this expansion of substantive copyright entitlement and contraction of fair use facilitates continued overreach by industrial content owners. A tremendous number of copyright disputes are resolved not through litigation or negotiation, but instead through sending takedown notices to internet service providers and websites that rights holders believe in "good faith" to be hosting infringing content. (223) Copyright owners have stretched this "good faith" requirement quite far, (224) and some estimate that roughly one-third of DMCA takedown notices stand on shaky legal ground. (225) Although [section] 512(f) provides a cause of action for rights-holder "misrepresentations" within a takedown notice, copyright holders generally are able to represent "gray" cases of fair use as clear infringement. (226) To the extent that eBay and Salinger lead to a contraction in fair use, they expand this gray area of infringement so as to subject a wider range of uses to "good faith" takedown requests. (227) If one of the major impetuses for narrowing the availability of preliminary injunctions is a concern with prior restraint of lawful speech, (228) a doctrinal shift that will further underwrite extrajudicial censorship of a wide range of noninfringing content should be particularly troubling. (229)
Third, requiring compensation for an ever-expanding range of uses subverts many of the ideological and moral commitments underlying much of the scholarship in this area. As Diane Zimmerman has observed, "The idea of a metered public domain ... is intuitively uncomfortable, and I suspect quite alien to the understanding that animates the work of most scholars in the field." (230) For example, Edwin Baker has argued that "speech freedom is a liberty--not a market--right. Freedom of speech gives a person a right to say what she wants. It does not give the person a right to charge a price for the opportunity to hear or receive her speech." (231) In a slightly different vein, Jennifer Rothman argues that requiring payment for expressive uses of copyrighted works is in tension with the significant personal meaning that engagement with copyrighted works can carry, and that it can interfere with the liberty-enhancing benefits of such engagement. (232) Julie Cohen further suggests that "a compensation requirement might have the perverse effect of suppressing those retellings that map most closely to the dissent trope." (233) If an author's reinterpretation of a popular work were driven by some critical perspective on that work, guaranteeing financial enrichment to the object of that critique might seriously degrade and/or dissuade the author's critical/creative endeavor. (234) Lastly, even if the earlier author would be entitled to financially benefit from a wider swath of subsequent uses, the shift from a property rule to a liability rule could excessively commodify and devalue the emotional investment of the author in the initial work. (235)
B. Lack of Transparency
Regardless of whether one views the harms outlined above as outweighing the potential benefits of the eBay/Salinger standard, it is nonetheless troubling that the shift toward a strong liability rule does not seem to be the product of careful, transparent deliberation about the advantages and disadvantages of such a regime. The Salinger court discussed at length how concerns with the First Amendment should be incorporated into steps two through four of the preliminary injunction inquiry, but it affirmed the district court's fair use analysis in a single paragraph without any mention of the serious First Amendment issues implicated by that decision. (236) It reduced the district court's fair use analysis to essentially a credibility determination, subject to "clear error" review. (237)
It then summarily concluded that this determination combined with "all the other facts in this case"--whatever they may be--supported a denial of fair use. (238) Instead of grappling with the issues of public access, creative incentives, competition, and free speech embedded within the fair use doctrine, eBay and Salinger allow courts to give each side a little bit of what they want, facilitate settlement, (239) and tip their hats to the First Amendment. Because the question of infringement--with subsidiary determinations of copyrightability, substantial similarity, and fair use--is no longer the end-all and be-all of a request for an injunction and is instead just the first of several steps, courts no longer need to vindicate speech/expression interests through the resolution of difficult questions of fair use; instead, they can just skim over the merits and seemingly achieve the same ends by denying injunctive relief. The Salinger panel did not need to give more than cursory attention to the fair use issue in order to vacate the district court's order, but in so doing it effected a significant limitation on the rights of authors to critically engage with and reinterpret important cultural texts.
It would be one thing if the courts actually believed that the conduct in question, divorced from remedial considerations, represented clear instances of infringement. The rights/remedy distinction, however, makes it extremely difficult to know what concerns in fact motivated the result in the cases surveyed above. Douglas Laycock has observed that heavy reliance on equitable considerations, in particular the requirement of irreparable harm, can mask a court's actual motivations and shield the underlying normative position behind a legal decision. (240) "[W]henever a court cites the irreparable injury rule and denies the remedy that plaintiff seeks, there is some other reason for the decision--the operative rule or the real reason." (241) Salinger expressed concerns for the free speech interests of the parties and the public in a manner entirely divorced from its discussion of the merits of the plaintiffs claims, but, looking at the case itself, it is impossible to know what concerns, if any, influenced the court's views on the merits. Even though rights and remedies are "inextricably intertwined," (242) Salinger "retroactively installed" a plaintiffs rights as prior to remedial considerations and cleaved policy issues out of the discussion of rights, cutting off any "direct access" to the normative thrust of the opinion. (243) Because this sharp conceptual distinction between rights and remedies forecloses direct access to the normative underpinnings of the rights determination, it is incredibly difficult to assess the ideological and jurisprudential significance of Salinger. It is far from clear (1) whether Salinger is a First Amendment victory whose specific facts happened to militate against fair use or (2) whether the panel's preference for a strong liability rule and its attendant transactional efficiencies embraced a split-the-baby compromise as a means toward this end.
Looking at the Salinger standard, however, through the lens of performativity rather than through an essentialist rights/remedy distinction can potentially expose the cooperation of copyright law and market ideologies. (244) In deciding whether to enjoin some particular conduct, a court may not be merely responding to some potential failure in the market for copyrighted works; it may instead be producing the market-based structures that appear to have prefigured the dispute. In vacating the preliminary injunction in Salinger, the Second Circuit repeatedly invoked the First Amendment and the importance of considering the expressive interests of the parties as well as the public at large; despite this invocation, however, the decision as a whole shifts copyright law in a manner that further entrenches a belief that copyright holders are entitled to compensation for a vast range of downstream uses. (245) To those who have advocated limitations on injunctive relief based on a commitment to nonindustrial and/or noneconomic creative values, the potential adaptation of such proposals to reify transactional copyright norms should be troubling. A performative approach to remedies at the very least unearths the dynamism and slipperiness of the rights/remedy relationship as an object of inquiry and potential concern.
Performative theory further demonstrates the role of temporal sequencing in this reinforcement of status quo norms. As explained above, the "success" of a performative is in large part attributable to a temporal inversion, whereby it installs a phenomenon as existing prior to social interpretation. This temporal inversion is characteristic of the "two-step process" of rights essentialism which, according to Levinson, "legitimate[s] and protects" the privileged status of rights and obscures the way in which the iteration of remedies shapes substantive constitutional values. (246) This same two-part sequence--addressing the merits of an infringement claim and then deciding what remedy should or should not follow--has pervaded copyright scholarship and recent case law. By according first-order consideration to merits determinations and relegating the question of remedies to secondary status--whereby it attempts to enhance, diminish, or cure the consequences of the first-order decision--this sequential approach masks the normative significance of the remedial determination. By positing a robust entitlement determination as occurring first-in-time and in isolation from pragmatic considerations, the Salinger sequence naturalizes and normalizes a baseline right to control and/or receive compensation for the use of a copyrighted work.
Lastly, the idea that eBay and Salinger provide courts with greater flexibility or wider discretion insufficiently accounts for the role of such flexible remedies in shaping rights and fails to dislodge status quo economic norms from the construction of both rights and remedies. (247) Flexibility and fluidity may ease some of the constraints of the current system or "cure" some of the harshest consequences of a court finding infringement, (248) but greater freedom given a particular determination of infringement nonetheless "upholds and sustains" the assumptions and values that give rise to that baseline finding. (249) The entire discussions of injunctive relief in eBay and Salinger are predicated upon an infringing act, and it is important to remember that both decisions' discussions of speech, competition, and the public interest operate off this baseline assumption. Flexibility at the remedies stage provides defendants greater freedom to continue their creative efforts notwithstanding the label of infringer, but grounding flexibility in that label conditions remedial freedom on at least temporary concession of that label's validity. Because freedom from the consequences of being named an infringer requires acceding to the existence of infringement, the linear rights [right arrow] remedies sequence forecloses contesting infringement while simultaneously harnessing the liberatory promise of remedy reform. Broader equitable discretion can make the copyright system seem fairer and less explicitly speech inhibitory, but it does so without fundamentally reshaping the status quo values of that system. (250) Remedies--viewed as outgrowths of baseline rights--may be reformed by eBay and Salinger, but these decisions disaggregate rights and remedies in a manner that both obscures the performative role of remedies (251) and maintains a robust system of copyright entitlements.
Halberstam has warned that "we have become adept within postmodernism at talking about 'normativity,' but far less adept at describing in rich detail the practices and structures that both oppose and sustain conventional forms of association, belonging, and identification." (252) Copyright scholarship is filled with beautifully diverse articulations of alternative models of creativity, collaboration, and public discourse, but it is important to be sensitive to the conventional practices, procedures, and conceptual framings that serve to subtly, but effectively, entrench copyright's current ideological commitments.
The primary purpose of this Article has been to demonstrate the limits of using remedies to protect interests in speech and expression against the expansions of copyright law. I am not arguing that eBay or Salinger were wrong to prohibit categorical rules favoring injunctive relief; there are good reasons to require courts to keep in mind the traditional equitable factors before taking the drastic step of issuing an injunction. It is important, however, that courts and scholars recognize the potential consequences of advocating and embracing the standard embodied by eBay and Salinger. These cases deal with a particular set of litigants whose interests may be adequately served by the split-the-baby outcomes facilitated by the eBay/Salinger standard; but for the broader public operating in the shadow of copyright law, a court's finding of infringement may be deeply problematic.
Given the relative novelty of Salinger and the application of the eBay standard to copyright law, the ideas explored in this Article can only be provisional. Nonetheless, viewing the deployment of the four-part test through the lens of remedial and performative theories suggests a far more dynamic relationship between rights and remedies than copyright law and scholarship have generally acknowledged. Not only do these theories suggest an interrelationship between rights and remedies, but they also reveal a deep intertwinement between the underlying normative aims of our copyright system and the adjudicative sequences that further them.
(1.) eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 392 (2006) (vacating permanent injunction in patent case and stating that its "approach is consistent with our treatment of injunctions under the Copyright Act"); see also Salinger v. Colting, 607 F.3d 68, 78 (2d Cir. 2010) (quoting eBay, 547 U.S. at 391-93).
As this Article will show, by suggesting there is a rights/remedy problem, I do not mean that copyright law lacks effective remedies for violations of its statutory rights. See, e.g., Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1489 (1987) ("It therefore seems evident that at least in some cases, blanket government immunity from liability conflicts with the Constitution's structural principle of full remedies for violations of legal rights against government."); Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, NonRetroactivity, and Constitutional Remedies, 104 HARV. L. REV. 1731, 1778 (1991) ("When, if ever, does the Constitution require particular remedies for constitutional violations? Must there be an effective remedy for every such violation--and if so, what, exactly, does 'effective' mean in this setting?").
(2.) See, e.g., John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 YALE L.J. 87 (1999); David Rudovsky, Running in Place: The Paradox of Expanding Rights and Restricted Remedies, 2005 U. ILL. L. REV. 1199. 3. See, e.g., H. Brian Holland, Tempest in a Teapot or a Tidal Wave? Cybersquatting Rights and Remedies Run Amok, 10 U. FLA. J. TECH. L. & POL'Y 301 (2005) (focusing on Internet law); Stephen A. Smith, The Structure of Unjust Enrichment Law: Is Restitution a Right or a Remedy?, 36 LOY. L.A.L. REV. 1037 (2003) (describing unjust enrichment law).
(4.) eBay, 547 U.S. at 392.
(5.) See, e.g., C. Edwin Baker, First Amendment Limits on Copyright, 55 VAND. L. REV. 891 (2002); Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on the Enclosure of the Public Domain, 74 N.Y.U.L. REV. 354 (1999); Robert C. Denicola, Copyright and Free Speech: Constitutional Limitations on the Protection of Expression, 67 CALIF. L. REV. 283 (1979); Paul Goldstein, Copyright and the First Amendment, 70 COLUM. L. REV. 983 (1970); Mark A. Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 DUKE L.J. 147 (1998); Neil Weinstock Netanel, Locating Copyright Within the First Amendment Skein, 54 SWAN. L. REV. 1 (2001).
(6.) See, e.g., LAWRENCE LESSIG, FREE CULTURE: HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL CREATMTY, at xvi (2004) ("free culture"); William Fisher, Theories of Intellectual Property, in NEW ESSAYS IN THE LEGAL AND POLITICAL THEORY OF PROPERTY 168, 193 (Stephen R. Munzer ed., 2001) ("semiotic democracy"); Jed Rubeufeld, Freedom of Imagination: Copyright's Constitutionality, 112 YALE L.J. 1 (2002) ("freedom of imagination").
(7.) See, e.g., Goldstein, supra note 5, at 1030.
(8.) See, e.g., Golan v. Holder, 132 S. Ct. 873, 892-94 (2012) (rejecting First Amendment challenge to section 514 of the Uruguay Round Agreements Act, which restored copyright protection to certain foreign works that had entered the public domain); Eldred v. Ashcroft, 537 U.S. 186, 218-21 (2001) (rejecting First Amendment challenge to Copyright Term Extension Act); Kahle v. Gonzales, 487 F.3d 697 (9th Cir. 2007) ("[T]raditional First Amendment safeguards such as fair use and the idea/expression dichotomy are sufficient to vindicate the speech interests affected."), cert. denied sub nom. Kahle v. Mukasey, 128 S. Ct. 958 (2008); Elvis Presley Enters. v. Passport Video, 349 F.3d 622, 626 (9th Cir. 2003) ("First Amendment concerns in copyright cases are subsumed within the fair use inquiry.... [I]f the use ... is not fair use, there are no First Amendment prohibitions against granting a preliminary injunction."); Chi. Bd. of Educ. v. Substance, Inc., 354 F.3d 624, 631 (7th Cir. 2003) ("The First Amendment adds nothing to the fair use defense.").
(9.) Seemingly successful opposition to the Stop Online Privacy Act--a statute that would
widely expand the "remedies" available for infringement but purports not to expand the "substantive" reach of copyright--is perhaps another example of this trend. See H.R. 3261, 112th Cong. [section] 2(a)(2) (2011) ("Nothing in title I shall be construed to enlarge or diminish liability, including vicarious or contributory liability, for any cause of action available under title 17, United States Code, including any limitations on liability under such title.").
(10.) eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 393-94 (2006).
(11.) 607 F.3d 68, 77 (2d Cir. 2010).
(12.) See, e.g., Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 979 (9th Cir. 2011) (rejecting plaintiffs argument that it was entitled to a presumption of irreparable harm and affirming denial of preliminary injunction), cert. denied, 132 S. Ct. 1713 (2012); Flexible Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989, 990 (9th Cir. 2011) (vacating preliminary injunction against use of plaintiffs drawings in Air Force contract bids where district court relied on presumption of irreparable harm); Christopher Phelps & Assocs. v. Galloway, 492 F.3d 532, 543 (4th Cir. 2007) (rejecting argument that plaintiff was entitled to injunctive relief because there was a threat to continuing copyright infringement).
(13.) Although the focus of this Article is on the trend toward limiting injunctive relief as opposed to potential limitations on damages awards, I suspect that many of its insights--in particular the inverse relationship between the breadth of rights and the scope of available remedies--apply in large measure to monetary relief. Scholars have argued that the prospect of exorbitant statutory damages, like the prospect of an injunction, chills the use of and engagement with copyrighted works, and they have accordingly sought a clawback in available monetary damages. See, e.g., Alan E. Garfield, Calibrating Copyright Statutory Damages to Promote Speech, 38 FLA. ST. U. L. REV. 1, 16-18 (2010) (noting how high statutory damages discourages use of copyrighted works); Pamela Samuelson & Tara Wheatland, Statutory Damages in Copyright Law: A Remedy in Need of Reform, 51 WM. & MARY L. REV. 439 (2009) (discussing excessive damage awards and arguing for reform). To the extent that such a clawback would lessen the perceived consequences of an infringement finding, for the reasons explored in Part III, the lowered "costs" of such a finding may lead a court to comfortably find infringement where it previously might have hesitated. The issue of exorbitant statutory damages awards and potential due process limits has also been the subject of several notable recent decisions. See Sony BMG Music Entm't v. Tenenbaum, 660 F.3d 487, 488-90 (1st Cir. 2011) (reinstating $675,000 damages award and remanding for consideration of common law remitter), cert. denied, 132 S. Ct. 2431 (2012); Capitol Records, Inc. v. Thomas-Rasset, 799 F. Supp. 2d 999, 1001 (D. Minn. 2011) (reducing a $1.5 million jury award to $54,000).
(14.) This trend is not, of course, universal. Eric Goldman has tracked a number of district court orders that have issued extremely broad injunctions covering numerous third-party search engines and domain name registries. See Venkat Balasubramani & Eric Goldman, Egregious/Overreaching Ex Parte Orders for Rightsowners Keep Coming--Deckers and injunctive relief no longer collapses into a mere determination of likely success on the merits but instead requires a structured, sequential consideration of the merits of a plaintiffs claims, irreparable harm, balance of hardships, and the public interest. (15) As a result, several copyright scholars have celebrated the eBay and Salinger standards as ways to counteract some of copyright's most flagrant First Amendment abuses. (16)
Salinger demonstrates, however, the risks of advancing remedy reform while paying little attention to the relationship between the determinations of rights and remedies. Although the Second Circuit expressly championed eBay as providing a First Amendmentsensitive standard for injunctive relief, it nonetheless breezily approved the district court's highly derided (17) conclusion that the novel 60 Years Later: Coming Through the Rye was not a fair use of Salinger's The Catcher in the Rye. (18) Notwithstanding 60 Years Later's deeply critical commentary on both Holden Caulfield--who appeared as a seventy-six-year-old--and Salinger himself--who also
(15.) eBay, 547 U.S. at 391 ("[P]laintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction."); see also Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008) ("A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.").
(16.) See, e.g., Arlen W. Langvardt & Tara E. Langvardt, Caught in the Copyright Rye: Freeing First Amendment Interests from the Constraints of the Traditional View, 2 HARV. J. SPORTS & ENT. L. 99, 152-54 (2011) (celebrating Salinger and eBay as advancing free speech interests in copyright injunctions); Jessica Silbey, Comparative Tales of Origins and Access: Intellectual Property and the Rhetoric of Social Change, 61 CASE W. RES. L. REV. 195, 233 (2010) (citing eBay as a move toward more communitarian understanding of intellectual property); see also Nell Weinstock Netanel, Making Sense of Fair Use, 15 LEWIS & CLARK L. REV. 715, 757-58 (2011) (citing Salinger as part of "growing judicial skepticism toward copyright holder rights").
(17.) See, e.g., Langvardt & Langvardt, supra note 16, at 155 (opining that the Second Circuit erred in upholding the district court's determination that the fair use defense would likely fail); Kate O'Neill, The Content of Their Characters: J.D. Salinger, Holden Caulfield, Fredrik Colting, 59 J. COPYRIGHT SOC'Y U.S.A. 291,318-19 (2012) (criticizing district court's interpretation of Colting's novel).
(18.) See Salinger v. Colting, 607 F.3d 68, 83 (2d Cir. 2010).
(19.) See O'Neill, supra note 17, at 303-04.
(20.) Salinger, 607 F.3d at 83.
(21.) See O'Neill, supra note 17, at 340-42.
(22.) See, e.g., Andrew Albanese, J.Do Salinger Estate, Swedish Author Settle Copyright Suit, PUBLISHERS WKLY. (Jan. 11, 2011), http://www.publishersweekly.com/pw[by-topic/industry-news/publisher-news/article/45738-j-d-salinger-estate-swedish-author-settlecopyright-suit.html.
(23.) The notion that the merits determination is "substantive" indicates that the infringement/rights/merits determination exists on its own. See RENE DESCARTES, PRINCIPLES OF PHILOSOPHY 23 (Valentine Rogers Miller & Reese P. Miller trans., D. Reidel Publ'g Co. 1984) (1644) ("By 'substance', we can understand nothing other than a thing which exists in such a way that it needs no other thing in order to exist."). I accordingly refer to the substance/procedure and rights/remedies binaries for the sake of convenience only and without any fealty to their conceptual underpinnings.
(24.) See Langvardt & Langvardt, supra note 16, at 154.
(25.) See O'Neill, supra note 17, at 340-41 (discussing how the decision "expand[ed] copyright's scope as an exclusive property right").
(26.) See infra Part I.A.
(27.) See infra Part I.B.
(28.) See, e.g., J.L. AUSTIN, HOW TO DO THINGS WITH WORDS 4-11 (1962); JOHN R. SEARLE, SPEECH ACTS: AN ESSAY IN THE PHILOSOPHY OF LANGUAGE 136-41 (1969). For example, a court's pronouncement that a defendant is "guilty" or that a couple is "man and wife" produces the convict and married couple, respectively, it is addressing.
(29.) See infra Part IV.A-B.
(30.) See infra Part IV.C.
(31.) See Langvardt & Langvardt, supra note 16, at 154.
(32.) See, e.g., Christopher Phelps & Assocs. v. Galloway, 492 F.3d 532, 543 (4th Cir. 2007) (interpreting eBay to prohibit a presumption of irreparable harm); Allora, L.L.C.v. Brownstone, Inc., No. 1:07CV87, 2007 WL 1246448, at *5, *8 (W.D.N.C. Apr. 27, 2007) (declining to presume irreparable harm following a prima facie showing of copyright infringement).
(33.) See, e.g., Abend v. MCA, Inc., 863 F.2d 1465, 1479 (9th Cir. 1988) (observing that an injunction "would cause a great injustice" to the owners of the derivative film), aff'd sub nom. Stewart v. Abend, 495 U.S. 207 (1990).
(34.) For proposals to limit injunctive relief in addition to those discussed herein, see Floyd Abrams, First Amendment and Copyright, 35 J. COPYRIGHT SOC'Y U.S.A. 1, 3, 12 (1987); James L. Oakes, Copyrights and Copyremedies: Unfair Use and Injunctions, 18 HOFSTRA L. REV. 983, 994-96 (1990); see also 4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT [section] 14.06[B] [b][i] (Matthew Bender, rev. ed. 2012) (discussing the modern trend toward limiting injunctions).
(35.) Goldstein, supra note 5.
(36.) Id. at 988.
(39.) Id. at 1033. Portending doctrinal developments to come, Goldstein's article "implicitly endorses a scheme of compulsory licensing." Id. at 1034.
(40.) Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105, 1111 (1990); see, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) (citing Leval, supra, at 1111).
(41.) Leval, supra note 40, at 1132-35.
(42.) Id. at 1130-31.
(43.) Id. at 1132.
(45.) Id. at 1133 (footnote omitted).
(46.) See id. at 1133-34.
(47.) Id. at 1131.
(48.) Id. at 1131 n.114; see also Salinger v. Random House, Inc., 650 F. Supp. 413, 426 (S.D.N.Y. 1986) (finding fair use in publication of Salinger's unpublished personal letters in an unauthorized biography of the author), rev'd, 811 F.2d 90 (2d Cir. 1987). As in the later Salinger decision, Leval, in retrospect, would have denied both fair use and injunctive relief. See Pierre N. Leval, Fair Use or Foul, 36 J. COPYRIGHT SOCK (U.S.A. 167, 179 (1989).
(49.) See Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010) (vacating an injunction but denying fair use defense).
(50.) Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified in scattered sections of 17 U.S.C.).
(51.) Pub. L. No. 105-298, 112 Stat. 2827 (1998) (codified in scattered sections of 17 U.S.C.).
(52.) Prominent examples include: YOCHAI BENKLER, THE WEALTH OF NETWORKS (2006); JAMES BOYLE, SHAMANS, SOFTWARE, AND SPLEENS (1996); LESSIG, supra note 6; JESSICA LITMAN, DIGITAL COPYRIGHT (2001).
(53.) Rubenfeld, supra note 6, at 57-58.
(54.) Id. at 55; see also Alex Kozinski & Christopher Newman, What's So FairAbout Fair Use?, 46 J. COPYRIGHT SOC*YU.S.A. 513 (1999) (arguing that both injunctive relief and fair use should be unavailable for derivative works and that the remedy should be limited to a pro rata accounting of profits and actual damages); John Tehranian, Whither Copyright? Transformative Use, Free Speech, and an Intermediate Liability Proposal, 2005 BYU L. REV. 1201 (proposing that transformative uses be subject only to an accounting of profits, not damages or injunctive relief).
(55.) Netanel, supra note 5, at 83-84.
(56.) Lemley & Volokh, supra note 5.
(57.) Id. at 210.
(58.) Id. at 158-59 (footnote omitted).
(59.) Id. at 161-62.
(60.) Id. at 197.
(61.) 537U.S. 186, 187-88 (2003) (upholding constitutionality of Copyright Term Extension Act). Such hopes were likely further dampened by the Supreme Court's recent refusal to provide First Amendment scrutiny to section 104A of the Copyright Act. See Golan v. Holder, 132 S. Ct. 873, 883, 889-92 (2012).
(62.) See supra notes 15-16 and accompanying text.
(63.) Pamela Samuelson & Krzysztof Bebenek, Why Plaintiffs Should Have to Prove Irreparable Harm in Copyright Preliminary Injunction Cases, 6 I/S: J.L. & POL'Y FOR INFO. SOC'Y 67, 80 (2010).
(64.) Id. at 89.
(65.) Robert Kasunic, Preserving the Traditional Contours of Copyright, 30 COLUM. J.L. & ARTS 397,421 (2007); see also Christina Bohannan, Copyright Harm, Foreseeability, and Fair Use, 85 WASH. U. L. REV. 969, 1030 (2007) ("[E]ven when the harm caused by the defendant's use requires compensation, the social value of the defendant's use should weigh heavily in a court's decision on whether to grant an injunction."); John M. Newman, Note, Raising the Bar and the Public Interest: On Prior Restraints, "Traditional Contours," and Constitutionalizing Preliminary Injunctions in Copyright Law, 10 VA. SPORTS 8 ENT. L.J. 323, 344-45 (2011).
(66.) Orit Fischman Afori, Flexible Remedies as a Means to Counteract Failures in Copyright Law, 29 CARDOZO ARTS & ENT. L.J. 1, 2 (2011).
(67.) Id. at 23.
(68.) Id. at 24.
(69.) Id. at 29-33.
(70.) See, e.g., James Gibson, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 YALE L.J. 882, 943-45 (2007) ("If the rights-holder could demand only a compensatory licensing fee, its ability to hijack the defendant's entire production process would disappear ... go[ing] a long way toward curtailing the unnecessary licensing that fuels doctrinal feedback."); Mark A. Lemley & Philip J. Weiser, Should Property or Liability Rules Govern Information?, 85 TEX. L. REV. 783 (2007) (arguing that a liability rule helps prevent strategic holdup behavior by entitlement holders); Stewart E. Sterk, Property Rules, Liability Rules, and Uncertainty About Property Rights, 106 MICH. L. REV. 1285 (2008) (arguing that liability rules reduce incentives to engage in inefficient informational searches). Law and economics literature does not universally accept the shift away from strong property-like protections, however. See, e.g., David McGowan, The Tory Anarchism of F/ OSS Licensing, 78 U. CHI. L. REV. 207 (2011); Robert P. Merges, Of Property Rules, Coase, and Intellectual Property, 94 COLUM. L. REV. 2655 (1994); cf. William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. LEGAL STUD. 325, 361-63 (1989) (discussing the ideal term of a copyright).
(71.) Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972); see Gibson, supra note 70, at 944-45.
(72.) See ROGER D. BLAIR & THOMAS F. COTTER, INTELLECTUAL PROPERTY: ECONOMIC AND LEGAL DIMENSIONS OF RIGHTS AND REMEDIES 3 (2005) (assuming that "the policymaker has chosen a particular scope and duration" and "some insights as to the advantages and disadvantages of different possible rules for the private enforcement of these rights in court"); Shyamkrishna Balganesh, Demystifying the Right to Exclude: Of Property, Inviolability, and Automatic Injunctions, 31 HARV. J.L. & PUB. POL'Y 593, 608 (2008) ("Almost all the literature on the Calabresi-Melamed model has come to view it as focusing almost entirely on the issue of remedies."); cf. Thomas F. Cotter, Fair Use and Copyright Overenforcement, 93 IOWA L. REV. 1271, 1295-97 (2008) (arguing that a liability rule might resolve much of the tension between the First Amendment and copyright depending on "how much weight to accord" defendants' First Amendment interests).
A notable exception is Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 YALE L.J. 1533, 1573-75 (1993), who argues that a shift toward a liability rule would better protect free speech interests. Additionally, although Calabresi and Melamed's model is best known for its taxonomy of remedial options, they do mention considerations for initial entitlement allocations, such as efficiency, distributional preferences, and "[o]ther [j]ustice [r]easons." Calabresi & Melamed, supra note 71, at 1093-1105.
(73.) See, e.g., David McGowan, Why the First Amendment Cannot Dictate Copyright Policy, 65 U. PITT. L. REV. 281, 330-31 (2004); Henry E. Smith, Property and Property Rules, 79 N.Y.U.L. REV. 1719, 1729 (2004).
(74.) See, e.g., Sterk, supra note 70, at 1297-98.
(75.) Gibson, supra note 70, at 945. Wendy Gordon has similarly intuited that "the switch to monetary remedies [might] encourage a growth in pro-plaintiff doctrine (a growth that hardly needs any more fertilizer)." Wendy J. Gordon, Render Copyright unto Caesar: On Taking Incentives Seriously, 71 U. CHI. L. REV. 75, 91 (2004).
(76.) 109 F.3d 1394 (9th Cir. 1997) (rejecting the argument that an account of the O.J. Simpson trial entitled The Cat NOT in the Hat! A Parody by Dr. Juice was fair use of Dr. Seuss's well-known The Cat in the Hat and upholding the preliminary injunction). Several scholars have criticized the merits of the Ninth Circuit's analysis. See, e.g., Bruce P. Keller & Rebecca Tushnet, Even More Parodic than the Real Thing: Parody Lawsuits Revisited, 94 TRADEMARK REP. 979, 987-88 (2004) ("[D]istinguishing parody from satire requires aesthetic and literary judgment that the copied work is not in any way a target of criticism, and, in particular, it is far from clear that the Dr. Seuss court's view was correct."); Tyler T. Ochoa, Dr. Seuss, The Juice and Fair Use: How the Grinch Silenced a Parody, 45 J. COPYRIGHT SOC'Y U.S.A. 546, 548 (1998).
(77.) Kozinski & Newman, supra note 54, at 526; see also Richard Dannay, Copyright Injunctions and Fair Use: Enter eBay--Four-Factor Fatigue or Four-Factor Freedom, 55 J. COPYRIGHT SOC'Y U.S.A. 449, 459 (2008) ("For copyright owners, where fair use is a close question--close enough that a court might reject a finding of infringement liability for fear that an injunction might be too harsh but unavoidable--eBay may avoid the up-or-down risk of the binary fair-use finding." (footnote omitted)).
(78.) Kozinski & Newman, supra note 54, at 528.
(79.) Balganesh, supra note 72, at 609.
(80.) Id. at 607.
(81.) Id. at 609; see also Dale A. Nance, Guidance Rules and Enforcement Rules: A Better View of the Cathedral, 83 VA. L. REV. 837, 840-41 (1997) (questioning whether the Calabresi-Melamed taxonomy involved "guidance" or "enforcement" rules).
(82.) See, e.g., BLAIR & COTTER, supra note 72, at 1-6.
(83.) This discussion will focus primarily on constitutional law scholarship due to the particular attention that has been given to the definition of the substantive constitutional right articulated in a particular case. Although a substantial body of scholarship in the legal realist tradition has focused on the rights/remedy relationship in tort, property, and contract law, see, e.g., Calabresi & Melamed, supra note 71; Oliver W. Holmes, The Path of the Law, 10 HARV. L. REV. 457, 460-63 (1897), the "vaporized" boundaries between rights and remedies in this body of scholarship have shifted attention away from the definition of the substantive private law right or entitlement and toward a unified entitlement theory centered upon the available remedy, see, e.g., Saul Levmore, Unifying Remedies: Property Rules, Liability Rules and Startling Rules, 106 YALE L.J. 2149, 2149 (1997). Given the consequences of the way courts define infringement and fair use, see infra Part IV, it is important in the copyright context not to gloss over the substantive entitlement in a way that private law remedies scholarship can encourage and that the eBay/Salinger standard facilitates.
(84.) Important empirical research into judicial psychology and decision making has similarly shown an interplay between threshold justiciability questions and later decisions on the merits. See, e.g., Eileen Braman, Reasoning on the Threshold." Testing the Separability of Preferences in Legal Decision Making, 68 J. POL. 308, 308 (2006) (demonstrating the influence of judicial attitudes on abortion and free speech rights on standing decisions).
(85.) Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803); see also, e.g., Bell v. Hood, 327 U.S. 678, 684 (1946) ("[W]here legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done."); Kendall v. United States, 37 U.S. (12 Pet.) 524, 624 (1838) ("[T]he power to enforce the performance of the act must rest somewhere, or it will present a case which has often been said to involve a monstrous absurdity in a well organized government, that there should be no remedy, although a clear and undeniable right should be shown to exist.").
(86.) Owen M. Fiss, Foreword: The Forms of Justice, 93 HARV. L. REV. 1, 52 (1979).
(87.) Id. ("Rights and remedies are but two phases of a single social process-of trying to give meaning to our public values. Rights operate in the realm of abstraction, remedies in the world of practical reality.").
(88.) Paul Gewirtz, Remedies and Resistance, 92 YALE L.J. 585,587 (1983) (quoting Cooper v. Aaron, 358 U.S. 1, 20 (1958)); see Rudovsky, supra note 2, at 1199 C[A]lthough constitutional and statutory rights have generally been expanding since the historic Brown v. Board of Education, federal remedies have not kept pace.").
(89.) Fiss, supra note 86, at 52.
(90.) See PETER H. SCHUCK, SUING GOVERNMENT 26-28 (1983) ("[R]ights and remedies are utterly different legal phenomena--products of distinct reasoning processes employing distinct sources, methodologies, and decision criteria. Conceptions of justice that deny this disjunction are likely to be deeply flawed.").
(91.) Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM. L. REV. 857, 858 (1999).
(92.) Id. at 924.
(93.) See, e.g., 2 JOHN AUSTIN, LECTURES ON JURISPRUDENCE OR THE PHILOSOPHY OF POSITIVE LAW 765-68 (Robert Campbell ed., 5th ed. 1885) ("[I]t is impossible to extricate the right of action itself from those subsidiary rights by which it is enforced."); Frank H. Easterbrook, Civil Rights and Remedies, 14 HARV. J.L. & PUB. POL*Y 103, 103 (1991) ("Most disputes over remedies in civil rights cases have nothing to do with remedies and everything to do with substantive entitlements."); Lon L. Fuller, Williston on Contracts, 18 N.C.L. REV. 1, 4 n.5 (1939) (reviewing SAMUEL WILLISTON, A TREATISE ON THE LAW OF CONTRACTS (rev. ed. 1938)) ("Certainly the issue cannot be foreclosed by assuming a moral duty which sets its own legal sanction, or by assuming a legal duty so tenacious of life that it continues to exist even after courts have ceased to enforce it."); Holmes, supra note 83, at 458.
(94.) Levinson, supra note 91, at 858.
(95.) Id. at 873-84.
(96.) Id. at 884.
(97.) Id. at 858.
(98.) Id. at 857.
(99.) eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 392 (2006). Compare id., with Fiss, supra note 86, at 52 ("[A right] can exist without a remedy--the right to racial equality, to be free of Jim Crowism, can exist even if the court gave no relief (other than the mere declaration).").
(100.) Leval, supra note 40, at 1133.
(101.) Afori, supra note 66, at 24.
(102.) Samuelson & Bebenek, supra note 63, at 89.
(103.) See supra notes 77-78 and accompanying text.
(104.) Levinson, supra note 91, at 884-85.
(105.) Id. at 889-90; see 384 U.S. 436 (1966).
(106.) Levinson, supra note 91, at 887.
(107.) Id. at 901,903.
(108.) Id. at 888.
(109.) Id. at 909.
(110.) Intellectual property holders regularly argue that injunctive relief is proper because it would be too difficult or costly to calculate monetary damages, see eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 395 (2006) (Roberts, C.J., concurring) (noting "the difficulty of protecting a right to exclude through monetary remedies" (emphasis omitted)), but eBay and its progeny require courts to determine on a case-by-case basis whether a particular circumstance warrants the issuance of an injunction, id. at 393-94 (majority opinion).
(111.) See, e.g., James M. Fischer, What Hath eBay v. MercExchange Wrought?, 14 LEWIS & CLARK L. REV. 555, 557 (2010) ("If no remedy for a violation is provided, the right is illusory for practical purposes. The stronger the remedy, the more valuable the right is to the right holder."). For example, Justice Kennedy's concurrence in eBay singles out nonpracticing entities/patent trolls as an industry reliant upon the threat of an injunction to extract supracompetitive licensing fees. eBay, 547 U.S. at 396 (Kennedy, J., concurring). Several scholars also have pointed to near-automatic copyright injunctions as giving rights holders undue leverage over downstream uses of their works. See, e.g., Lemley & Weiser, supra note 70, at 784, 795.
(112.) Although copyright scholars for the most part have not grappled at length with remedial deterrence, some work has been done on the manipulation of copyright law to avoid what would be seen as harsh consequences of rigid application of copyright doctrine, for example in the development of a taxonomy of general, limited, investive, and divestive publication under the 1909 Copyright Act. See Jake Linford, A Second Look at the Right of First Publication, 58 J. COPYRIGHT SOC'Y U.S.A. 585, 605-10 (2011).
(113.) This reluctance to find infringement when the result is a broad set of remedies perhaps suggests one reason that content industries have increasingly focused their efforts on extrajudicial remedies, such as those made available under the proposed Stop Online Privacy Act. See H.R. 3261, 112th Cong. [section] 103(b) (2011) (requiring ad networks and payment processors to stop serving infringing websites upon notice from the copyright holder).
(114.) See supra note 48 and accompanying text.
(115.) Salinger v. Colting, 607 F.3d 68, 70, 83 (2d Cir. 2010).
(116.) See Levinson, supra note 91, at 889-90; see also Jeffries, supra note 2, at 99 ("The decision in Miranda depended, I think crucially, on the (now abandoned) doctrine of nonretroactivity, which allowed the Court to give effect to new requirements only in future applications."); Sam Kamin, Harmless Error and the Rights/Remedies Split, 88 VA. L. REV. 1, 29 (2002) ("Would Miranda have been decided as it was if the cost of the decision was the granting of new trials to virtually every defendant in state and federal prison?").
(117.) Jeffries, supra note 2, at 101 ("Might Brown have come out differently if the decision had come with a huge pricetag?"); see 347 U.S. 483 (1954).
(118.) Jeffries, supra note 2, at 90.
(119.) See id. at 105 (describing a "rolling reallocation of constitutional resources from older to younger citizens"). Prominent criticisms of this view include Thomas Healey, The Rise of Unnecessary Constitutional Rulings, 83 N.C.L. REV. 847, 928-35 (2005) (arguing that unnecessary rulings on the merits are likely to retard the development of constitutional rights because courts do not always rule for plaintiffs on the merits and plaintiffs have little incentive to litigate nondispositive issues), and Nancy Leong, The Saucier Qualified Immunity Experiment: An Empirical Analysis, 36 PEPP. L. REV. 667, 702-08 (2009) (arguing that judges are unlikely to issue split rulings due to attendant "cognitive dissonance").
(120.) Kamin, supra note 116, at 39. Similarly, Ashutosh Bhagwat has advocated for "remedial discretion" as a way of dealing with difficult constitutional disputes. Rather than balancing the interests in recognizing a constitutional right against some particular overriding social interest--resulting in jurisprudence full of ad hoc exceptions--Bhagwat has proposed taking the resulting compromise out of the substance and into the procedure. Ashutosh Bhagwat, Hard Cases and the (D)Evolution of Constitutional Doctrine, 30 CONN. L. REV. 961, 1005-10 (1998). By keeping questions of compromise out of the question of rights and using a flexible focus on remedies to balance competing social values, courts can firm up core constitutional commitments. "The primary consequence of a greater focus on remedial alternatives in hard cases is that hard cases will no longer generate quite as strong an impetus for courts to define rights narrowly to avoid social costs." Id. at 1009.
(121.) Kamin, supra note 116, at 39.
(122.) See id. at 38-39 (emphasis added); see also John M.M. Greabe, Mirabile Dictum!: The Case for "Unnecessary" Constitutional Rulings in Civil Rights Damages Actions, 74 NOTRE DAME L. REV. 403, 405-08 (1999) (arguing that courts should not always engage in "merits bypasses" due to the important notice-giving potential of their technically unnecessary rulings on the merits). Kamin accordingly embraced the Supreme Court's decision in Saucier v. Katz, 533 U.S. 194 (2001), which mandated this sequential approach to qualified immunity. Unsurprisingly, the Court's overruling of the case in Pearson v. Callahan, 555 U.S. 223 (2009), has been questioned as stifling constitutional development. See John C. Jeffries, Jr., Reversing the Order of Battle in Constitutional Torts, 2009 SUP. CT. REV. 115, 116-17, 132-36.
(123.) Levinson briefly alludes to the "competing considerations of remedial deterrence and remedial substantiation" and notes that "more than one form of remedial equilibration may be in play at the same time." Levinson, supra note 91, at 913. He further suggests that the "odd political alignments" on the question of retroactivity reflect this interplay. Id.
(124.) Even when entitled to statutory damages, rights holders may nonetheless sacrifice an extremely large damages award if it would deter a court from finding a substantive right. For example, in Capitol Records v. Thomas-Rassett, 692 F.3d 899 (8th Cir. 2012), plaintiffs had received a jury award of $222,000, $1,920,000, and $1,500,000, respectively, over the course of three infringement trials. On appeal, plaintiffs sought, "for tactical reasons," reinstatement of the $222,000 award instead of the higher amounts. Id. at 902. In exchange, they sought a ruling by the Eighth Circuit about the heavily-disputed issue of whether "making available" a copyrighted work was a violation of the distribution right. Id. at 903 (noting district court split).
(125.) See Bhagwat, supra note 120, at 1008-12 (arguing that flexibility in remedial considerations allows courts to find the existence of a constitutional right in "hard cases").
(126.) 555 U.S. 223.
(127.) Id. at 236. In Camreta v. Greene, 131 S. Ct. 2020 (2011), the Court held that a defendant who prevails on qualified immunity grounds may seek review of a finding of a constitutional violation. Id. at 2028-33. Justices Kennedy and Thomas, dissenting, and Justice Scalia, concurring, suggested that eventually "the Court might find it necessary to reconsider its special permission that the Courts of Appeals may issue unnecessary merits determinations in qualified immunity cases with binding precedential effect." Id. at 2043 (Kennedy, J., dissenting); see also id. at 2036 (Scalia, J., concurring) ("The alternative solution ... is to end the extraordinary practice of ruling upon constitutional questions unnecessarily when the defendant possesses qualified immunity.").
(128.) Saucier v. Katz, 533 U.S. 194, 201 (2001).
(129.) Pearson, 555 U.S. at 239.
(130.) Id. at 239-40 (quoting Hornev. Coughlin, 191 F.3d 244, 247 (2d Cir. 1999)).
(131.) This is not to say that in the constitutional law context courts have gotten it right and settled upon the "correct" approach to adjudicating constitutional rights and remedies; it is instead to point out that the rights/remedies interplay has risen up much closer to the surface in the constitutional context than it has in the intellectual property context. See also Warth v. Seldin, 422 U.S. 490, 520 (1975) (Brennan, J., dissenting) ("While the Court gives lip service to the principle, oft repeated in recent years, that 'standing in no way depends on the merits of the plaintiff's contention that particular conduct is illegal,' in fact the opinion ... can be explained only by an indefensible hostility to the claim on the merits." (footnote and citation omitted)).
(132.) For example, as support for its concern that mandatory sequencing would lead to careless decision making, the Court cited to a 2006 article by Judge Leval that criticized the "mischievous" sequencing rule set forth in Saucier. Pearson, 555 U.S. at 234 (citing Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U.L. REV. 1249, 1275, 1277 (2006)). In Leval's formulation, Saucier required that "before dismissing the case on the ground of good faith immunity, the court must first either gratuitously declare a new constitutional right in dictum or decide that the claimed right does not exist." Leval, supra, at 1275-76. This decisional sequencing is bound to produce '"oad constitutional law" because "in many cases neither the judge nor the defendant has any practical interest in the theoretical question of constitutionality. Both know it can have no effect on the inevitable dismissal of the case. The court's conclusion on this question will come at no price." Id. at 1277-78 (footnote omitted). This concern stands in sharp relief to Leval's proposal in the copyright context to decouple a finding of infringement from the issuance of an injunction. See supra notes 40-49 and accompanying text.
(133.) Levinson notes but does not delve into "the competing considerations of remedial deterrence and remedial substantiation." See Levinson, supra note 91, at 913. Such indeterminacy, however, is often at the heart of postmodern critique and opens up space for political engagement at junctures seemingly foreclosed by essentialist accounts of a particular phenomenon. See, e.g., Judith Butler, Contingent Foundations: Feminism and the Question of "Postmodernism," in Feminists Theorize The Political 3 (Judith Butler & Joan W. Scott eds., 1992); Robert W. Gordon, Some Critical Theories of Law and Their Critics, in The Politics Of Law 641, 655 (David Kairys ed., 3d ed. 1998).
(134.) See Levinson, supra note 91, at 924.
(135.) Id. at 857.
(136.) Cf. Judith Butler, Gender Trouble 33 (1990) ("There is no gender identity behind expressions of gender; that identity is performatively constituted by the very 'expressions' that are said to be its results."). In speech-act theory, language is performative more generally when it enacts or produces that which it names. See, e.g., AUSTIN, supra note 28, at 4-11; Jacques Derrida, Signature Event Context, in LIMITED INC 1, 13-14 (1988); Searle, supra note 28, at 136-41.
(137.) Judith Butler, Bodies That Matter 1-5, 12 (1993).
(138.) Levinson, supra note 91, at 870-72 (describing Ronald Dworkin's distinction between rights and remedies in social constructivist terms).
(139.) Butler, supra note 136, at 5, 11.
(140.) Id. at 5; BUTLER, supra note 137, at 5 ("But this sex posited as prior to construction will, by virtue of being posited, become the effect of that very positing.").
(141.) Judith Butler, Excitable Speech 128 (1997) ("In the conventional view, censorship appears to follow the utterance of offensive speech: speech has already become offensive, and then some recourse to a regulatory agency is made.").
(142.) See Butler, supra note 137, at 10 ("[T]here is no reference to a pure body which is not at the same time a further formation of that body.").
(143.) Butler, supra note 141, at 128 ("Censorship precedes the text (by which I include 'speech' and other cultural expressions), and is in some sense responsible for its production."); see also Ritu Birla, Performativity Between Logos and Nomos: Law, Temporality and the "Non. Economic Analysis of Power,'21 COLUM. J. GENDER & L. 90, 95 (2011) ("Performativity plays with temporality, and so with the very notion of context itself."). Important studies of temporality in this vein include Lee Edelman, No Future (2004); Elizabeth Freeman, Time Binds (2010); and Annamarie Jugose, Inconsequence (2002).
(144.) See Madhavi Menon, Spurning Teleology in Venus and Adonis, 11 GLQ J. Lesbian & Gay Stud. 491, 492 (2005) ("[T]eleology depends on a sequence leading to an end that can retrospectively be seen as having had a beginning."). Carla Freccero has discussed the sense of being a "future dead person writing [her]self out of time while time is running out." Carolyn Dinshaw et al., Theorizing Queer Temporalities: A Roundtable Discussion, 13 GLQ J. LESBIAN & Gay Stud. 177, 184 (2007). This concept is particularly provocative in the judicial context, not just for its temporal inversion but also for the permanency and memorialization that accompanies the issuance of a judicial opinion in our common law system. To the extent that concerns with issuing a particular remedy influence the articulation of a right, an interesting question is how a sense of legacy, with its associated fears and responsibilities, further contributes to the future's shaping of the past.
(145.) Levinson, supra note 91, at 871-72 (analyzing Ronald Dworkin, Taking Rights Seriously 82-84, 90 (1977)).
(146.) Annamarie Jugose has shown how sequencing has been used in psychoanalytical literature to shore up sexuality and gender hierarchies by positing "normal" adult heterosexuality as first or primary and its aberrations--in the form of male and female homosexuality, in that order--as developmental derivations from this norm. Jugose, supra note 143, at 25-27. One particularly illuminating example concerns the publication of Havelock Ellis's monumental Studies in the Psychology of Sex. Havelock Ellis, Studies In The Psychology Of Sex (1905). Upon the publication of the first volume ready for print, Sexual Inversion, Ellis noted that "[i]t was not my intention to publish a study of an abnormal manifestation of the sexual instinct before discussing its normal manifestations." Jugose, supra note 143, at 25. In subsequent editions of Studies, however, the volumes were reordered so that Sexual Inversion became Volume II, and Ellis "was pleased to be able to effect this change of order." Id. at 26.
(147.) See, e.g., Judith Halberstam, In A Queer Time And Place 6-7 (2005) ("[B]ecause we experience time as some form of natural progression, we fail to realize or notice its construction." (analyzing David Harvey, The Condition Of Postmodernity (1990))); Carol J. Greenhouse, Just in Time: Temporality and the Cultural Legitimation of Law, 98 YALE L.J. 1631, 1636 (1989) (describing linear time as "time with a purpose" designed to resolve tensions among potentially conflicting priorities); cf. Butler, supra note 137, at 11 (suggesting that the concession of materiality performatively materializes it).
(148.) See William E. Scheuerman, Liberal Democracy And The Social Acceleration Of Time 2-3 (2004) (arguing that temporal assumptions reflect particular social organizations and that linearity is linked to industrial wage economies).
(149.) Butler, supra note 141, at 51.
(150.) Butler, supra note 136, at 189 ("If taken as the grounds of feminist theory or politics, these 'effects' of gender hierarchy and compulsory heterosexuality are not only misdescribed as foundations, but the signifying practices that enable this metaleptic misdescription remain outside the purview of a feminist critique of gender relations.").
(151.) See supra notes 94-98 and accompanying text.
(152.) 2 AUSTIN, supra note 93, at 767.
(153.) See, e.g., Julie E. Cohen, Configuring The Networked Self 7 (2012) ("My goal in this book is to focus critical attention on what the freedom/control binary leaves out. Upon closer inspection, each vision of the information society has a hollow core. The self that is to exercise expressive freedom, or to benefit from market abundance, remains a mere abstraction."); id. at 51 ("Dichotomies between commerce and speech, or between utopian bliss and revolutionary struggle, are useful for expository purposes, but they can become crutches. The two-dimensional models that they offer are too stark to capture the full range of human motivations, choices, behaviors, and experiences, or the protean way in which one set of motivations and behaviors can flow into another.").
(154.) See generally WENDY BROWN, STATES OF INJURY (1995) (discussing ways in which social justice projects premised upon the vulnerability and victimhood of certain groups codify such attributes in the legal treatment of members of those groups). I have observed other iterations of this dynamic elsewhere. See Andrew Gilden, Toward a More Transformative Approach: The Limits of Transgender Formal Equality, 23 Berkeley J. Gender L. & Just. 83 (2008) (arguing, inter alia, that sex-stereotyping theories of transgender discrimination essentialize gender binaries and perpetuate status quo understandings of norms and deviancies).
(155.) eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 392 (2006).
(156.) Id. at 392-93 ("And as in our decision today, this Court has consistently rejected invitations to replace traditional equitable considerations with a rule that an injunction automatically follows a determination that a copyright has been infringed."). In Campbell v. Acuff-Rose Music, Inc., even though the Court accepted 2 Live Crew's fair use defense, it went out of its way to embrace Judge Leval's argument that "the goals of the copyright law, 'to stimulate the creation and publication of edifying matter,' are not always best served by automatically granting injunctive relief when parodists are found to have gone beyond the bounds of fair use." 510 U.S. 569, 578 n.10 (1994) (quoting Leval, supra note 40, at 1134). The Court reiterated this concern in New York Times Co. v. Tasini. In finding the inclusion of freelance articles in electronic databases infringing, the Court rejected arguments that its conclusion would "punch gaping holes in the electronic record of history." 533 U.S. 483, 504-05 (2001). It emphasized that "it hardly follows from today's decision that an injunction against the inclusion of these Articles in the Databases (much less all freelance articles in any databases) must issue." Id. at 505.
(157.) eBay, 547 U.S. at 393-94.
(158.) Id. at 396-97 (Kennedy, J., concurring).
(159.) Id. at 397.
(160.) See, e.g., Daniel A. Crane, Intellectual Liability, 88 Tex. L. Rev. 253, 263-65 (2009); Fischer, supra note 111, at 559-61; Jake Phillips, Note, eBay's Effect on Copyright Injunctions: When Property Rules Give Way to Liability Rules, 24 Berkeley Tech. L.J. 405,411-12, 416-19 (2009).
(161.) See Lemley & Weiser, supra note 70, at 795-96; see also Ian Ayres & Eric Talley, Solomonic Bargaining." Dividing a Legal Entitlement to Facilitate Coasean Trade, 104 YALE L.J. 1027, 1045 (1995) ("The defendant's ownership of the liability rule call option thus acts as an upper bound on the ability of a low-valuing plaintiff to overstate her valuation.").
(162.) For example, in Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2756 (2010), the Court applied the eBay four-factor test to a claim under the National Environmental Policy Act.
(163.) As David Bernstein and I have argued elsewhere, this extension to other areas of intellectual property law--in particular trademark law--is problematic. See David H. Bernstein & Andrew Gilden, No Trolls Barred." Trademark Injunctions After eBay, 99 Trademark Rep. 1037, 1038-39 (2009) (arguing that eBay should not eliminate the presumption of irreparable harm in trademark law due to conceptual differences between trademark law and patent and copyright law).
(164.) For example, patent law does not require actual copying like copyright law does. See Stephen M. Maurer & Suzanne Scotchmer, The Independent Invention Defence in Intellectual Property, 69 ECONOMICA 535, 535 (2002) ("Perhaps the most basic difference between patents and other intellectual property such as trade secrets and copyrights is that independent invention is not a defence to infringement.").
(165.) See, e.g., Jiarui Liu, Copyright Injunctions After eBay: An Empirical Study, 16 LEWIS & CLARK L. REV. 215, 256 (2012); Maureen A. O'Rourke, Toward a Doctrine of Fair Use in Patent Law, 100 COLUM. L. REV. 1177, 1196-98 (2000). There are some exceptions written into the Patent Act, however, including the doctrine of patent misuse, limits on patentable subject matter, and government use compulsory license. See 28 U.S.C. [section] 1498 (2006); 35 U.S.C. [section][section] 101, 271(d) (2006). To the extent that the eBay standard shifts attention away from these doctrines, many of the concerns expressed in this Article likely would apply.
(166.) See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 571-72 (1994) (finding parodic reinterpretation of Roy Orbison's Oh, Pretty Woman to be fair use); Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 447-56 (1984) (finding time shifting of television broadcasts to be fair use); see also Ned Snow, The Forgotten Right of Fair Use, 62 CASE W. RES. L. REV. 135 (2011) (arguing that fair use concerns were historically considered part of the threshold question of whether a use was infringing, instead of incorporated into an affirmative defense to infringement under current law).
(167.) See, e.g., Lee Anne Fennell, Adjusting Alienability, 122 HARV. L. REV. 1403, 1414 (2009).
(168.) See, e.g., Lemley & Weiser, supra note 70, at 800-03.
(169.) See supra Part I.A.
(170.) See, e.g., C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. REV. 964, 990-1009 (1978); see also Riley v. Nat'l Fed'n of the Blind, 487 U.S. 781, 795 ("[T]he First Amendment does not permit the State to sacrifice speech for efficiency.").
(171.) 607 F.3d 68 (2d Cir. 2010).
(172.) Circuits have split over whether a sliding-scale approach to preliminary injunctions remains valid after Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008). The Second, Seventh, and Ninth Circuits have held that Winter requires a consideration of the four-part test and requires at least a likelihood of irreparable harm, but that it does not forbid lower courts from balancing likelihood of success against the relative balance of harms. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011); Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 38 (2d Cir. 2010). The Fourth Circuit, by contrast, has interpreted Winter as setting forth a stricter four-part test that requires plaintiffs to show entitlement under each criterion. See Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 347 (4th Cir. 2009), vacated, 130 S. Ct. 2371 (2010). In her dissent in Winter, Justice Ginsburg stated that she did not believe that the majority opinion rejected the sliding-scale standard used in several circuits. Winter, 555 U.S. at 51 (Ginsburg, J., dissenting).
(173.) Citigroup, 598 F.3d at 35 (citations omitted).
(174.) Salinger, 607 F.3d at 76.
(175.) Id. at 76-79. In Winter, the Court rejected the Ninth Circuit's standard for preliminary injunctions, particularly to the extent that it allowed preliminary injunctions to issue on a mere showing of a possibility of irreparable harm. It held instead that "[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter, 555 U.S. at 20.
(176.) Salinger, 607 F.3d at 79 (quoting NXIVM Corp. v. Ross Inst., 364 F.3d 471,476 (2004)) (alteration in original).
(177.) Id. at 80.
(179.) Id. (quoting eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2005)).
(180.) Indeed, Judge Calabresi repeated eBay's insistence that "the creation of a ]statutory] right [to exclude] is distinct from the provision of remedies for violations of that right." Id. at 78 (quoting eBay, 547 U.S. at 392) (internal quotation marks omitted).
(181.) Id. at 81. See O'Neill, supra note 17, for an extended critique of this declared right not to speak.
(182.) Salinger, 607 F.3d at 82.
(184.) Id. at 79 n.8.
(185.) Id. at 83.
(186.) See, e.g., Joseph P. Bauer, Copyright and the First Amendment: Comrades, Combatants, or Uneasy Allies?, 67 WASH. LEE L. REV. 831, 898 (2010) ('The use of the format of a sequel based on this iconic literary character allowed unique insights, which might not have been achieved as effectively through more traditional forms of commentary or criticism."); Thomas F. Cotter, Transformative Use and Cognizable Harm, 12 VAND. J. ENT. & TECH. L. 701, 749-51 (2010); Langvardt & Langvardt, supra note 16, at 123-34; Rebecca Tushnet, Scary Monsters: Hybrids, Mashups, and Other Illegitimate Children, 86 NOTRE DAME L. REV. 2133, 2143-44 (2011).
(187.) Salinger, 607 F.3d at 83.
(188.) Tushnet, supra note 186, at 2144.
(189.) Eldred v. Ashcroft, 537 U.S. 186, 219-20 (2003).
(190.) Salinger, 607 F.3d at 83.
(191.) See supra notes 81-82 and accompanying text.
(192.) The Ninth Circuit's adoption of the eBay approach in Perfect 10, Inc. v. Google, Inc. perhaps suggests that this sequencing is not set in stone and that courts might bypass the merits altogether. See 653 F.3d 976, 982 n.3 (9th Cir. 2011), cert. denied, 132 S. Ct. 1713 (2012). The court in that case affirmed the denial of a preliminary injunction on the grounds that the plaintiff had not established irreparable harm, id. at 981-82, and the panel did not discuss the merits of Google's fair use defense. Given the apparent strength of Google's fair use argument, the decision is a bit of a lost opportunity to confirm Google's reliance on fair use in administering its ubiquitous Image Search service. Nonetheless, a discretionary approach to rights/remedy sequencing likely does help cabin split-the-baby incentives.
The panel's approach did not lead to any substantive expansions, given that the district court rejected the plaintiffs argument on the merits. It is important to note, however, that to the extent that future appeals present a split-the-baby decision in the lower court, an affirmance solely on the lack of irreparable harm could leave questionable district court rulings on the merits intact.
(193.) For example, the Ninth Circuit has only just recently held that eBay alters its traditional approach to copyright preliminary injunctions. See Flexible Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989, 995 (9th Cir. 2011), cert. denied, 132 S. Ct. 1713 (2012); Perfect 10, 653 F.3d at 981. The Perfect 10 litigation is a good example of the interplay between fair use determinations and the availability of injunctive relief. In the initial preliminary injunction ruling, the district court rejected Google's argument that its Image Search thumbnails were a fair use of Perfect 10's images, concluding they could interfere with the market for small, low-resolution adult images on mobile devices. Perfect 10, Inc. v. Google, Inc., 416 F. Supp. 2d 828, 851 (C.D. Cal. 2006), aff'd inpart, rev'd inpart sub nom. Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007). Relying on the Ninth Circuit's presumption of irreparable harm, a preliminary injunction followed. Id. at 859. The district court did not preliminarily enjoin Image Search, however, but instead proposed a much more limited injunction requiring Google to implement a notice-and-takedown process for excluding Perfect 10 images. See Lemley & Weiser, supra note 70, at 801-02. "In adopting such a limited remedy, the court effectively removed much of the sting from its liability ruling." Id. at 802.
(194.) In Tasini, the Court concluded that the inclusion of freelance newspaper articles in online databases was infringing, but it at least arguably split the baby by declaring that an injunction need not follow. N.Y. Times Co. v. Tasini, 533 U.S. 483, 506 (2001) ("Agreeing with the Court of Appeals that the Publishers are liable for infringement, we leave remedial issues open for initial airing and decision in the District Court.").
(195.) For instance, Jiarui Lui in his empirical study of copyright injunctions after eBay found little change in the rate of denying injunctions in copyright cases. See Liu, supra note 165, at 227-29. Liu's study, however, was admittedly limited to the time period ending June 2010, only a few months after Salinger was released. Id. at 228.
(196.) Another example of this split-the-baby dynamic occurred shortly before this Article went to press. In Fox Broad. Co. v. Dish Network, L.L.C., No. CV 12-04529 DMG, 2012 WL 5938563, at "17-19 (C.D. Cal. Nov. 7, 2012), the district court denied Fox's motion for a preliminary injunction due to a lack of irreparable harm. Nonetheless, in its discussion of the merits, the court concluded that the creation of a Quality Assurance copy of the plaintiffs programs was not fair use, even though the QA copy was never directly presented to the endusers and the commercial-skipping end product it facilitated was itself deemed a fair use. Id. at "14 ("The fact that consumers ultimately use AutoHop in conjunction with PTAT for private home use, a fair use under Sony, does not render the intermediate copies themselves a fair use as well.").
(197.) See Transcript of Hearing on Motion for Preliminary Injunction at 2, Whitmill v. Warner Bros. Entre't, Inc., No. 4:11-CV-752 (E.D. Mo. May 24, 2011), Doc. No. 56.
(198.) Id. at 4.
(199.) Id. at 5.
(200.) Id. at 6-7.
(201.) Transcript of Bench Ruling at 3-5, Capitol Records, LLC v. ReDigi Inc., No. 12 CV 95 (S.D.N.Y. Feb. 6, 2012) [hereinafter Bench Ruling], available at http://www.scribd.comJ doc/85183018/Redigi-Bench-Ruling-on-Preliminary-Injunction.
(202.) Michael B. Farrell, The Used Record Store Goes Digital, BOS. GLOBE, July 2, 2012, available at 2012 WLNR 16218658.
(203.) See, e.g., Letter from Fenwick & West LLP, on Behalf of Google, to Judge Sullivan (Feb. 1, 2012), available at http://beckermanlegal.com/Lawyer_Copyright_Internet_Law/ capitol_ redigi_120201GoogleLetterReAmicusBrief.pdf ("The Court can and should deny the motion for preliminary injunction without reaching the complex and profound legal issues outlined above because any decision should be informed by the fullest presentation of the relevant facts and law rather than at a preliminary injunction stage. A premature decision on incomplete facts could create unintended uncertainties for the cloud computing industry."); James Grimmelman, ReDigi and the Purpose of First Sale, PRAWFSBLAWG (Feb. 8, 2012, 3:21 PM), http://prawfsblawg.blogs.com/prawfsblawg/2012/02/redigi.and.the.purpose_of.first.sale. html ("What I love about this case is that it pushes and pulls our intuitions about copyright in so many different directions. It brings up fundamental questions not just about unsettled corners of doctrine, but also about what copyright is for.").
(204.) Bench Ruling, supra note 201, at 3.
(205.) Id. at 4.
(207.) 522 F.3d 1211, 1227-28 (11th Cir. 2008).
(208.) Id. at 1228.
(209.) Id. at 1223.
(210.) See Network Automation, Inc. v. Advanced Sys. Concepts, Inc., 638 F.3d 1137, 1146 n.3 (9th Cir. 2011) ("Modern search engines such as Google no longer use metatags. Instead they rely on their own algorithms to find websites."); Eric Goldman, 1 lth Circuit Freaks Out About Metatags, TECH. & MARKETING L. BLOG (Apr. 8, 2008, 12:00 PM), http://blog. ericgoldman.org/archives/2008/04/11th_circuit_fr.htm.
(211.) See, e.g., Phillips, supra note 160, at 430-31 (noting that a liability rule might help solve orphan works problems).
(212.) See MARJORIE HEINS & TRICIA BECKLES, WILL FAIR USE SURVIVE?: FREE EXPRESSION IN THE AGE OF COPYRIGHT CONTROL 5-6 (2005), available at http://www.fepproject.org!policyreports/WillFairUseSurvive.pdf.
(213.) Levinson, supra note 91, at 912.
(214.) Indeed, both cases settled fairly soon after the courts' decisions. See Matthew Belloni, Warner Bros. Settles "Hangover H" Tattoo Lawsuit (Exclusive), HOLLYWOOD ESQ. (June 20, 2011, 1:39 PM), http://www.hollywoodreporter.com/thr-esq/warner-bros'settles-hang[degrees]verii 203377; supra note 22 and accompanying text.
(215.) See, e.g., Jennifer E. Rothman, The Questionable Use of Custom in Intellectual Property, 93 VA. L. REV. 1899, 1918-21 (2007) (describing the widespread university classroom clearance customs that emerged from one settlement and one district court opinion).
(216.) For example, the imposition of a compulsory license on webcasters under the Digital Performance Right in Sound Recording Act put at least two hundred webcasters out of business within two weeks of the Librarian of Congress's final order. Matthew J. Astle, Will Congress Kill the Podcasting Star?, 19 HARV. J.L. & TECH. 161, 177-78 (2005); see also PATRICIA AUFDERHEIDE & PETER JASZI, RECLAIMING FAIR USE (2011) (providing many examples of license fees chilling creative endeavors).
(217.) PATRICIA AUFDERHEIDE & PETER JASZI, UNTOLD STORIES: CREATIVE CONSEQUENCES OF RIGHTS CLEARANCE CULTURE FOR DOCUMENTARY FILMMAKERS 17-22 (2004), available at http://www.centerforsocia.media.org/sites/default/files/UNTDSTRIES-Report.pdf.
(218.) See Tushnet, supra note 186, at 2135, 2154-55 (explaining how vidders benefit from fair use).
(219.) See, e.g., Stacey M. Lantagne, The Better Angels of Our Fanfiction: The Need for True and Logical Precedent, 33 HASTINGS COMM. & ENT. L.J. 159, 171 (2011) ("Salinger is not an ideal fanfiction precedent.").
(220.) Diane Leenheer Zimmerman, Is There a Right to Have Something to Say? One View of the Public Domain, 73 FORDHAM L. REV. 297, 368 (2004) (arguing that conditioning low-profit but socially valuable and self-enriching endeavors on the ability to pay "can lead to distortions that offend our norms of individual equality"); see also Niva Elkin-Koren, What Contracts Cannot Do: The Limits of Private Ordering in Facilitating a Creative Commons, 74 FORDHAM L. REV. 375, 384 (2005) ("While firms that produce content could easily carry the transaction costs involved in securing a license, high legal costs create a barrier on innovation by individuals."); Rebecca Tushnet, Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 YALE L.J. 535, 589 (2004) ("Yet poor people also have interests in self-expression and persuasion. ... [I]f wealth controlled access to foundational elements of speech, that protection would no longer exist."); Molly Shaffer Van Houweling, Distributive Values in Copyright, 83 TEX. L. REV. 1535, 1566 (2005) ("[I]terative creativity could be stifled by the mere expense of seeking and paying for permission to incorporate copyrighted expression into a new work.").
(221.) See Gibson, supra note 70, at 884-85; Rothman, supra note 215, at 1958 ("The clearance culture is... driven by big players--both owners and users--for whom licensing fees are much cheaper than the potential litigation down the road. Less well-financed users of IP cannot always afford licensing fees and therefore must rely on fair use and other defenses to infringement."); cf. Brett M. Frischmann & Mark A. Lemley, Spillovers, 107 COLUM. L. REV. 257, 288 (2007) ("Fair use deems lawful some uses that yield benefits to third parties, not because the transaction costs between the copyright owner and user are necessarily high, but rather to sustain the flow of spillovers to third parties.").
(222.) See, e.g., Lloyd L. Weinreb, Custom, Law, and Public Policy: The INS Case as an Example for Intellectual Property, 78 VA. L. REV. 141, 146-47 (1992) (expressing concern that "the better financed private interest" will be served through reliance on custom). But see Shyamkrishna Balganesh, The Pragmatic Incrementalism of Common Law Intellectual Property, 63 VAND. L. REV. 1543, 1579-87 (2010) (supporting the use of custom to determine reasonableness in common law intellectual property adjudication).
(223.) 17 U.S.C. [section] 512(c)(3)(A)(v) (2006); see, e.g., JASON MAZZONE, COPYFRAUD OTHER ABUSES OF INTELLECTUAL PROPERTY 69-71 (2011) (describing "[o]verreaching by copyright owners" in utilizing DMCA takedown notices).
(224.) See, e.g., Wendy Seltzer, Free Speech Unmoored in Copyright's Safe Harbor." Chilling Effects of the DMCA on the First Amendment, 24 HARV. J.L. & TECH. 171, 178 (2010) ("[T]he DMCA makes it too easy for inappropriate claims of copyright to produce takedown of speech. It encourages service providers to take down speech on notice even if the notice is factually questionable or flawed.").
(225.) See Jennifer MI Urban & Laura Quilter, Efficient Process or "Chilling Effects"?. Takedown Notices Under Section 512 of the Digital Millennium Copyright Act, 22 SANTA CLARA COMPUTER & HIGH TECH. L.J. 621,666 (2006) (finding that at least a third of DMCA notices contained "substantial legal questions related to the underlying copyright claim" or "significant technical noncompliance" with the statute).
(226.) Ira S. Nathenson, CiviI Procedures for a World of Shared and User-Generated Content, 48 U. LOUISVILLE L. REV. 911,921 (2010); see Rossi v. Motion Picture Ass'n of Am., 391 F.3d 1000, 1004-05 (9th Cir. 2004) (stating that only "knowing' misrepresentations are actionable).
(227.) See Nathenson, supra note 226, at 918-19 (arguing that through a "substance-procedure-substance feedback loop ... [t]he de facto scope of copyright can become extended far beyond the scope of what de jure copyright law permits").
(228.) See Lemley & Volokh, supra note 5, at 197-98.
(229.) See Seltzer, supra note 224, at 190 ("The takedowns resulting from DMCA notifications bear many of the hallmarks of prior restraints on speech.").
(230.) Zimmerman, supra note 220, at 367.
(231.) Baker, supra note 5, at 903.
(232.) Jennifer E. Rothman, Liberating Copyright: Thinking Beyond Free Speech, 95 CORNELL L. REV. 463, 528-29 (2010).
(233.) Julie E. Cohen, Creativity and Culture in Copyright Theory, 40 U.C. DAVIS L. REV. 1151, 1202 (2007).
(234.) See, e.g., McGowan, supra note 73, at 331 (arguing that a shift from fair use to allocation of profits could "squelch" a book "as effectively as any district court order").
(235.) For example, Wendy Gordon has expressed concern that a greater shift toward monetary remedies could "constrict" the ways that authors see their works:
The more the law pushes authors toward seeing their work in a cash-only nexus, the more danger it poses of devaluing the work in the artists' own minds. Common observation suggests that intrinsic motivations tend to produce better work, at least in the highly skilled vocations, than extrinsic motivations. But extrinsic motives could increasingly displace intrinsic ones if an author is entitled only to a sum of money.
Gordon, supra note 75, at 88 (footnote omitted); see also Robert P. Merges, The Concept of Property in the Digital Era, 45 HOUS. L. REV. 1239, 1271 (2008) ("Here is a thought: for some creators, it is more important to maintain the integrity of their work than to command a high price.").
(236.) A useful comparison is the Eleventh Circuit's approach to a very similar set of procedural and substantive issues in Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (1 lth Cir. 2001). In that case, the district court had preliminarily enjoined the release of Alice Walker's novel The Wind Done Gone, a retelling of Margaret Mitchell's classic novel Gone with the Wind, largely from the perspective of the novel's black characters. Suntrust Bank v. Houghton Mifflin Co., 136 F. Supp. 2d 1357, 1385-86 (N.D. Ga. 2001), vacated, 268 F.3d 1257. The district court had found defendants unlikely to succeed on their fair use defense, presumed the existence of irreparable harm, and found that the balance of harms and public interest weighed in favor of an injunction. See id. at 1370-85. Although the Eleventh Circuit did reject the district court's irreparable harm analysis, it carefully and extensively addressed the viability of the fair use defense and repeatedly emphasized that the fair use doctrine mediated First Amendment conflicts raised by copyright claims. See Suntrust, 268 F.3d at 1260-77. In ultimately concluding that Walker's novel was fair use, the court recognized the important speech and expression issues at stake in its fair use analysis. Id. at 1276-77.
(237.) Salinger v. Colting, 607 F.3d 68, 83 (2d Cir. 2010).
(239.) A rich body of scholarship has discussed the merits and drawbacks of courts encouraging settlement. See, most prominently, Owen M. Fiss, Against Settlement, 93 YALE L.J. 1073 (1984) (discussing the potential imbalances of power in the settlement process and the injustices that may arise by sidestepping trial and judgment).
(240.) See Douglas Laycock, The Death of the Irreparable Injury Rule, 103 HARV. L. REV. 687 (1990).
(241.) Id. at 726-27.
(242.) Levinson, supra note 91, at 858.
(243.) BUTLER, supra note 137, at 5.
(244.) See Birla, supra note 143, at 93 (highlighting the importance of considering "the performatives of law in its production of the market as sovereign").
(245.) See supra Part IV.B.
(246.) See Levinson, supra note 91, at 857, 924.
(247.) See Afori, supra note 66, at 2-3; Kamin, supra note 116, at 5-8; see also Winter v. Natural Res. Def. Council, 555 U.S. 7, 51 (2008) (Ginsburg, J., dissenting) ("Flexibility is a hallmark of equity jurisdiction.").
(248.) Afori, supra note 66, at 23-24.
(249.) See HALBERSTAM, supra note 147, at 18-19 (discussing how flexibility in terms of sexual politics "upholds and sustains" heteronormative assumptions); Dinshaw et al., supra note 144, at 190-91 (describing flexibility as a "temporal" construct).
(250.) Accordingly, Reva Siegel's idea of "preservation through transformation"--whereby a particular status regime evolves different means of enforcement over time--may be a useful framework through which to understand the consequences of eBay and Salinger. See Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117, 2119 (1996).
(251.) For a similar argument in the sex discrimination context, see Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. PA. L. REV. 1, 1-4 (1995).
(252.) HALBERSTAM, supra note 147, at 4.
ANDREW GILDEN *
* Law Fellow, Stanford Law School. Many thanks to Albertina Antognini, Julie Cohen, Beth Colgan, Paul Goldstein, Sonia Katyal, Mark Lemley, Kaipo Matsumura, Shirin Sinnar, Bryant Walker Smith, Norm Spaulding, Rebecca Tushnet, and participants at the 2012 Junior Scholars in IP Workshop and 2012 Intellectual Property Scholars Conference for their invaluable comments and feedback.
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|Title Annotation:||III. The Performativity of Remedies through Conclusion, with footnotes, p. 1154-1183|
|Publication:||William and Mary Law Review|
|Date:||Mar 1, 2013|
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