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The Representation of Two CompetingVisions on the Fundamentals ofCopyright: A Content Analysis ofAssociated Press News Coverage onCopyright, 2004–2009Minjeong Kim aa Department of Journalism and Technical Communication , ColoradoState UniversityPublished online: 03 Jan 2011.

To cite this article: Minjeong Kim (2011) The Representation of Two Competing Visions on theFundamentals of Copyright: A Content Analysis of Associated Press News Coverage on Copyright,2004–2009, Communication Law and Policy, 16:1, 49-87, DOI: 10.1080/10811680.2011.536498

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16 COMM. L. & POL’Y 49–87 (2011)Copyright © Taylor & Francis Group, LLCISSN: 1081-1680 print / 1532-6926 onlineDOI: 10.1080/10811680.2011.536498

THE REPRESENTATION OF TWOCOMPETING VISIONS ON THEFUNDAMENTALS OF COPYRIGHT:A CONTENT ANALYSIS OF ASSOCIATEDPRESS NEWS COVERAGE ON COPYRIGHT,2004–2009

MINJEONG KIM∗

The importance of the public’s understanding of copyright has in-creased in the digital age, and mainstream media play a significantrole in informing the public of copyright law and policy. This studyidentifies two competing visions on the fundamentals of copyright —the private property vision and the public policy vision — and examineswhich vision is more predominantly covered by mainstream news me-dia via a quantitative content analysis of Associated Press wire servicestories on copyright. The findings suggest that, although the numberof sources favoring copyright users’ rights has somewhat increased inthe most recent two years, overall the private property vision has beenmore dominantly covered than the public policy vision in the AP newsstories. The study concludes that the mainstream media coverage oncopyright needs to move toward a more balanced point where bothsides of the debate have an equal chance to present their views.

In 1995, the American Society of Composers, Authors and Publish-ers (ASCAP)1 contacted the American Camping Association and saidit planned to charge for copyrighted music performed at the group’s

∗Assistant Professor, Department of Journalism and Technical Communication, Col-orado State University. This study was funded in part by the Center for Research onCommunication and Technology at Colorado State University.

1ASCAP is a performing rights organization of composers, songwriters, lyricists andmusic publishers. ASCAP attempts to protect the rights of its members by licensing anddistributing royalties for the non-dramatic public performances of their copyrightedworks. ASCAP gives permission to perform music publicly for users of music. See AboutASCAP, http://www.ascap.com/about/.

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2,300 camps.2 When the camping association’s executive vice president,John Miller, was informed of ASCAP’s demand for the payment of aperformance license, his first response was, “You’ve got to be kidding.”3

However, the camping association’s lawyer determined that ASCAP’sdemand was not nonsense and that even nonprofit camps such as thoseoperated by the Girl Scouts were not necessarily exempt from licens-ing fees. The camping association negotiated with ASCAP and agreedthat each large camp would pay $250 a year.4 The association urged itsmembers to pay the $250 fee. Among the 256 Girl Scout camps on itslist, sixteen did.5

In March 1996, ASCAP moved one step further and sent letters to6,000 camps nationwide, informing them that they had to pay royaltiesfor public performances of copyrighted music.6 The letter neither spec-ified what it meant by “public performance” nor included a list of itsfour million songs. However, it included a schedule of annual fees thatwent as high as $1,439 for large year-round camps.7 The letter resultedin only eight camps purchasing licenses.8

ASCAP’s letter was, however, powerful enough to make some directorsof Girl Scout local councils, whose camps could not afford to pay the fee,very cautious. They instructed their counselors not to sing any songs notowned by the Girl Scouts. Two mothers who were voluntarily directinga Girl Scout summer camp in Oakland, California, had heard of thelegal trouble and asked a group of helpers to teach the young girlsthe Macarena, that summer’s dance craze, without music.9 Their silentMacarena led a front-page Wall Street Journal article titled “The BirdsMay Sing, But Campers Can’t Unless They Pay Up — ASCAP Warnsthe Girl Scout That ‘God Bless America’ Can Hit Legal Sour Notes.”10

According to the article, John Lo Frumento, ASCAP’s chief operatingofficer, said, “They buy paper, twine and glue for their crafts — theycan pay for the music, too.”11 He also said that if offenders keep singing

2See Elisabeth Bumiller, Battle Hymns Around Campfires: Ascap Asks Royalties FromGirl Scouts, and Regrets It, N.Y. TIMES, Dec. 17, 1996, at B1.

3Id.4Id.5Id.6Id.7Id.8Id.9See id. As it turned out, it was not ASCAP, but its competitor, Broadcast Music Inc.,

that licenses the Macarena.10Lisa Bannon, The Birds May Sing, But Campers Can’t Unless They Pay Up — ASCAP

Warns the Girl Scout That “God Bless America” Can Hit Legal Sour Notes, WALL ST. J.,Aug. 21, 1996, at A1.

11Id.

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without paying, “[W]e will sue them if necessary.”12 ASCAP backed offquickly after footage of the silent Macarena appeared on television newsprograms across the country. ASCAP descended into what its publicrelations consultant described as “PR hell.”13

Only a week after the publication of the Wall Street Journal article,ASCAP announced that it has “never sought, nor was it ever its inten-tion, to license Girl Scouts singing around the campfire.”14 It said that ithad only meant to license the commercial use of music at camps, whichit defined as performances by professional musicians at large resorts.15

ASCAP also said it would reimburse sixteen Girl Scout councils that didpay fees from $77 to $257 for the right to sing songs.16 ASCAP PresidentMarilyn Bergman said, “It has always been in the interest of our mem-bers to encourage the use of music everywhere, particularly by youngpeople.”17 ASCAP now charges the Girl Scouts a symbolic fee, $1 percamp per year.18

ASCAP committed a public relations blunder in this case, but AS-CAP’s demand was indeed based upon copyright law. Section 106 of the1976 Copyright Act gives the owner of copyright a bundle of exclusiverights, and a right to perform the work publicly is one of them.19 Sec-tion 101 of the act defines “to perform a work ‘publicly”’ as “to performit ‘at a place open to the public or at any place where a substantialnumber of persons outside of a normal circle of a family and its socialacquaintances is gathered.”’20 Thus, then law student Julien H. CollinsIII wrote, if the copyright law “is enforced to its narrowest confines, itis likely that nonprofit service or camping organizations may be subjectto copyright infringement suits.”21

However, Collins wrote that the activities of nonprofit camping orga-nizations such as the Girl Scouts may fall within a statutory exemptionunder Section 110 of the 1976 Copyright Act.22 Section 110(4) says that

12Id.13Bumiller, supra note 2, at B1.14Ascap Says Girl Scouts Can Sing Around the Campfire, WALL ST. J., Aug. 27, 1996,

at B2.15See Bumiller, supra note 2, at B1.16Ascap Says Girl Scouts Can Sing, supra note 14, at B1.17Neil Strauss, The Pop Life (Royalties and Girl Scouts), N.Y. TIMES, Aug. 29, 1996, at

C16.18See Jonathan Zittrain, “Calling Off the Copyright War” In Battle of Property vs. Free

Speech, No One Wins, B. GLOBE, Nov. 24, 2004, available at http://cyber.law.harvard.edu/is03/Readings/Zittrain 1.pdf.

1917 U.S.C. § 106 (1976).20Id. at § 101.21Julien H. Collins III, When in Doubt, Do Without: Licensing Public Performances by

Nonprofit Camping or Volunteer Service Organizations under Federal Copyright Law,75 WASH. U. L. Q. 1277, 1277 (1997).

22Id. at 1279.

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performance of musical work “without any purpose of direct or indi-rect commercial advantage and without payment of any fee or othercompensation for the performance to any of its performers, promoters,or organizers”23 is not copyright infringement. Still, Congress did notspecifically spell out who would be exempted,24 which was the source ofconfusion in the Girl Scout case.

The case of ASCAP and the campfire singers illustrates a number ofpoints. First, it shows ASCAP and its critics held starkly different viewsregarding the singing of camp songs. Though they operated within thesame system of copyright law, the copyright holder and the users of copy-righted work had such divergent views of that law. Second, regardless oflegal merits or the likely outcome of the case, ASCAP’s attempt to collectthe licensing fee had a chilling effect and resulted in the change in so-cial norms of using copyrighted music. Some directors of Girl Scout localcouncils, instead of paying the licensing fee or challenging the demandedfee in the court, instructed the young girls to dance the Macarena with-out music. As Harvard law professor Lawrence Lessig correctly noted,law can indirectly regulate one’s behavior by changing social norms.25

Third, the case shows that the media coverage led public’s negativeresponse to ASCAP’s attempt to collect the licensing fee and broughtchanges in ASCAP’s position on the singing of camp songs. ASCAP, oncewilling to sue Girl Scouts if they kept singing without paying,26 an-nounced a week after the publication of the Wall Street Journal articlethat it never sought nor intend to license Girl Scouts singing around thecampfire.27

These three points are closely related to the foundation and the pur-pose of this study. The study is built upon the finding — revealed throughthe exploration of the existing literature on copyright — that two com-peting visions on the fundamentals of copyright exist. With the assump-tion that the prevailing vision is likely to shape the scope and extentof copyright protection in the present and the future, this study aimsto examine which vision is more predominantly covered by mainstream

2317 U.S.C. § 110(4) (1996).24Under the 1909 Act, the unauthorized public performance of a musical or non-

dramatic literary work would infringe only if such performance were for profit. In that,the 1909 Act exempted all nonprofit performances of musical and nondramatic works.However, Congress discarded the “for profit” requirement in the 1976 Act, indicatingthat the reason for discarding the exemption was that “the line between commercialand nonprofit organizations is increasingly difficult to draw.” Collins, supra note 21, at1296–97.

25LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE 87 (1999) (discussingthe relationship between law and social norms).

26See Bannon, supra note 10, A1.27See Ascap Says Girl Scouts Can Sing, supra note 14, at B2.

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news media. The study focuses on the mainstream news media cov-erage for three reasons. First, mainstream news media are importantinformation channels to which the advocates of the two visions supplyinformation to promote their views.28 Second, mainstream news mediaare likely to affect how the majority of copyright users understand copy-right law and policy.29 Third, it is critical for the public to have a properunderstanding of copyright law and policy because copyright law hasbecome more relevant to individual members of the public in the digi-tal age and also because the public’s understanding of copyright law isclosely related to copyright’s norms that influence how copyrights areenforced.30

This study explores AP wire service stories published from January1, 2004, through March 31, 2009, on the issue of copyright. The nextsection synthesizes existing literature on copyright law in terms of twocompeting visions on the fundamentals of copyright. Then, the rationalebehind the study’s focus, the research questions, and the methodologyof quantitative content analysis are explained. Finally, findings andconclusions of the study are presented.

TWO COMPETING VISIONS ON THE FUNDAMENTALSOF COPYRIGHT

Two contrasting views on copyright can be found in the case of ASCAPand the campfire singers. The first view supports ASCAP’s attempt tocollect the licensing fee, whereas the latter view is the underlying basisfor the public’s negative response to that attempt. Although there aremany ways to label these two views,31 the first is a private propertyvision and the latter is a public policy vision. Though not everything in

28See infra notes 170–175 and accompanying text.29See infra notes 176–182 and accompanying text.30See infra notes 183–188 and accompanying text.31Scholars have used different labels in naming the two competing approaches. For

example, Stanford law professor Paul Goldstein labeled one side as “copyright optimists”because they view copyright’s cup as half full, waiting to be filled still further, and theother side as “copyright pessimists” because they see copyright’s cup as half empty.Goldstein wrote that academics pejoratively called the first group “high protectionists”and the latter group “low protectionists.” PAUL GOLDSTEIN, COPYRIGHT’S HIGHWAY: FROMGUTENBERG TO THE CELESTIAL JUKEBOX 11 (2nd ed., 2003). Another way to label theseapproaches is copyright as “an author’s right” versus copyright as “a user’s right.” Seegenerally L. RAY PATTERSON & STANLEY W. LINDBERG, THE NATURE OF COPYRIGHT: ALAW OF USERS’ RIGHTS (1991).

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copyright law neatly fits into one vision or the other,32 examining copy-right jurisprudence in terms of the two visions provides an analyticaladvantage.

The first vision is labeled the private property vision because thosewho support it believe copyright originated as a natural law propertyright of authors and that authors who create original works deserveto have property rights over their work.33 The private property visionemphasizes the private interests of authors in controlling the use ofcopyrighted works as their property.34 The public policy vision is heldby those who write that copyright has developed as society’s grant ofa limited monopoly and that the rights of authors must be weighedagainst the freedom of everyone else to use the copyrighted work.35

This vision underscores the importance of public interests in accessingand using copyrighted work.36 The public policy vision also underlinesthat copyright is a matter of public policy that aims to achieve a properbalance between private interests and public interests.37

Specifically, the two visions take different views on three points: theorigin of copyright, the economics of copyright, and the production ofcreative works. As a caveat, the differences between the two visionsare matters of emphasis. Each vision emphasizes one set of values overanother. The public policy vision, for instance, while it does not deny theneed for protecting private interests of authors, posits the ultimate goalof copyright protection is enhancing public interests.

The Origin of Copyright

Copyright originally was a right to control copies of a work.38 Whereis the right rooted? The private property vision characterizes copyrightas a natural law property right of authors. On the other hand, thepublic policy vision considers copyright as society’s grant of a limitedmonopoly to promote the public welfare by advancing knowledge. The

32A third group, so-called copyright anarchists, wishes to see all copyright abolished.John Perry Barlow, who famously declared “information wants to be free,” is a copyrightanarchist. See John Perry Barlow, The Economy of Ideas: A Framework for Patentsand Copyrights in the Digital Age (Everything You Know about Intellectual Property isWrong), WIRED, Mar. 1994, at http://www.wired.com/wired/archive/2.03/economy.ideaspr.html.

33See infra notes 51–52, 58–59 and accompanying text.34See infra notes 97–99 and accompanying text.35See infra notes 46–49, 68–71 and accompanying text.36See infra notes 100–104 and accompanying text.37See infra notes 107–109, 139–141 and accompanying text.38In the early development of copyright law in the United Kingdom, copyright es-

sentially worked as the British monarchy’s censorship tool. For more discussion of thisissue, see infra notes 41–42 and accompanying text.

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public policy vision was a dominant force, but not the only force, in theearly development of copyright law in the United Kingdom and in theUnited States.39 The development was, however, a constant strugglebetween the two visions.

Tracing these two visions historically is a daunting process since theprivate property vision can even be inferred from a sixth-century leg-end: “[W]hen the sixth-century monk Columba secretly copied a psalterbelonging to the Abbot Finian, King Diarmid ordered the unauthorizedcopy given to the Abbot: ‘To every cow her calf, and to every book itscopy.”’40 The introduction of the printing press into England in 1476,41

however, may be a good starting point because the printing press createdan interest for a right to control copies of books.

After the printing press was introduced, the right to control copiesof books was given to publishers by the British government throughcensorship laws including the Licensing Act of 1662.42 This first form ofcopyright protection reflects neither of the two visions because the rightswere for publishers, not authors. It was society’s grant of a monopolyfor publishers who were organized as the Stationers’ Company. Sincenobody except the Stationers could publish books, the publishers hada perpetual copyright. It worked as a means for the publishers to pro-tect their market monopoly and a tool for the British government tocensor the content of books. The Licensing Act expired in 1694,43 how-ever, which meant that the Stationers had no government protectionfor their market. The Stationers first tried to reinstate censorship laws,and when these efforts failed they tried a new strategy: They soughtlegal protection not for themselves but for authors.44 The success of thisstrategy was the Statute of Anne in 1710.45

The Statute of Anne, commonly known as the first English copyrightact,46 supports the public policy vision because it granted copyright toauthors for a limited time to encourage learning. The features of the

39See infra notes 47–93 and accompanying text.40GOLDSTEIN, supra note 31, at 30–31.41William Caxton had introduced the printing press into England in 1476. See L. RAY

PATTERSON, COPYRIGHT IN HISTORICAL PERSPECTIVE 4 (1968).42In 1557, Philip and Mary (Tudor) granted a royal charter to members of the book

trade, thereby creating the Stationers’ Company. The Stationers were businessmen whomanufactured and sold books. See PATTERSON & LINDBERG, supra note 31, at 19.

43See id. at 27.44See id.45See id. The Statute of Anne actually dealt with three copyrights: (1) the stationers’

copyright, (2) the printing patent, and (3) the new statutory copyright for authors. Seeid. at 28.

46Lyman Ray Patterson wrote that the Statute of Anne was not the first Englishcopyright act because the earlier Star Chamber Decrees, the ordinances of censorshipduring the Interregnum, and the Licensing Act of 1662 were copyright as well as cen-sorship acts. But, he wrote that the Statute of Anne was the first Parliamentary English

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Statute of Anne are well summarized by the late law professor andrenowned copyright history scholar Lyman Ray Patterson and the lateGeorgia Review editor Stanley W. Lindberg. First, as its title, “An act forthe encouragement of learning, by vesting the copies of printed books inthe authors or purchasers of such copies, during the times therein men-tioned,” demonstrates that the Statute of Anne stipulated that the mainreason for copyright protection was to encourage learning.47 Second, theStatute of Anne provided copyright for authors, although the benefit ofthe statute to authors was minimal because an author had to assignthe copyright to the Stationers in order to be paid.48 Third, copyright,rather than being perpetual, was limited to a term of fourteen years,with a fourteen-year-renewal term. Twenty-eight years after a work’spublication, anyone could copy the work and sell it to the public.49

The Stationers’ copyright finally expired in 1731.50 After 1731, pub-lishers had to rely on the new statutory copyright for authors, whichwas limited to two terms of fourteen years each. This meant that thepublishers lost their perpetual copyright, and thus, would lose marketmonopoly soon. The publishers began making their plea to gain newprotection. Rebuffed by Parliament, they turned to the English courts.51

The Stationers first claimed that authors deserved to have a commonlaw copyright that arose when the work was created.52 They claimedthat they owned the common law copyright in a work through a trans-fer from the author.53 Thus, printing unauthorized copies infringed thecommon law copyright, entirely apart from the Statute of Anne, theStationers alleged.54

The judicial efforts were a forty-year campaign that came to be knownas the Battle of the Booksellers.55 The battle ended with the publishers’loss. Among a series of cases in which the Stationers invoked the privateproperty vision, the most important decision was the 1774 House ofLords decision, Donaldson v. Beckett.56 The decision was a public policyvision victory because it denied the existence of a perpetual common law

copyright act, except for the ordinances during the Interregnum, and it was the firstcopyright act without provisions of censorship. PATTERSON, supra note 41, at 12.

47See PATTERSON & LINDBERG, supra note 31, at 27–31.48See id. at 28.49See id. at 29.50See id. at 32. The Stationers’ copyright expired in 1731 because the Statute of Anne

extended it for twenty-one years. Id.51See GOLDSTEIN, supra note 31 at 34.52See id. at 35.53See id.54See id.55See PATTERSON & LINDBERG, supra note 31, at 33.564 Burr. 2408; 98 Eng. Rep. 257; 2 Brown’s Parl. Cases 129; 1 Eng. Rep. 837 (1774);

17 Cobbett’s Parl. Hist. 953 (1813).

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copyright and held that copyright was a creation of statute and could belimited in its duration.

The case cannot be explained without a discussion of an earlier case,Millar v. Taylor.57 Andrew Millar, a London bookseller, purchased thecopyright in The Seasons from James Thomson, the author of that pop-ular epic poem. After the statutory copyright in the poem had expired,Robert Taylor, a bookseller outside the Stationers’ Company, issued acheap rival edition. Millar claimed infringement of the purportedly per-petual common law copyright that Thomson had sold him. The casewent to the Court of King’s Bench, which was the supreme court inEngland.

Millar won a victory for the private property vision. According toStanford law professor Paul Goldstein, Chief Justice Lord Mansfield,who had previously been counsel to the booksellers, declared that aperpetual copyright existed at common law and that the Statute of Annehad neither displaced the right nor limited its term.58 He said, “It is justthat an author should reap the pecuniary profits of his own ingenuityand labor. It is just that another should not use his name without hisconsent.”59 The Chancery, the arm of the English judiciary empoweredto grant injunctions, followed the King’s Bench decision for Millar andenjoined Taylor’s copies, Goldstein wrote.60 An appeal was brought tothe House of Lords, the United Kingdom’s court of final appeal, but thebooksellers promptly settled, Goldstein reported.61

The same issue over the same poem with different parties reached theHouse of Lords in Donaldson v. Beckett.62 Thomas Beckett, The Seasons’authorized publisher,63 sued Alexander Donaldson, a Scottish booksellerwho had reprinted the poem. The injunction against Donaldson wasgranted by the Chancery, and Donaldson appealed his case to the Houseof Lords. This time the Lords overturned the injunction by a vote of 21to 11,64 confirming the public policy vision.

A more complete report of the Donaldson case appears in Cobbett’sParliamentary History, which contains the arguments of counsel, theopinions of the judges, and the speeches of the Lords, of whom only five

574 Burr. 2303; 98 Eng. Rep. 201 (1769).58GOLDSTEIN, supra note 31 at 37.59Millar, 4 Burr. at 2398; 98 Eng. Rep. at 252.60See GOLDSTEIN, supra note 31, at 38.61See id.624 Burr. 2408; 98 Eng. Rep. 257; 2 Brown’s Parl. Cases 129; 1 Eng. Rep. 837 (1774);

17 Cobbett’s Parl. Hist. 953 (1813).63After Millar’s death, his estate sold his perpetual copyright in the Seasons to a group

of printers in 1769. See GOLDSTEIN, supra note 31, at 38.64See PATTERSON & LINDBERG, supra note 31, at 38 (citing Donaldson v. Beckett, 17

Cobbett’s Parl. Hist. at 1003).

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spoke.65 The public policy vision was elaborated, for example, by SirJohn Dalrymple, arguing for Donaldson. He said there was no propertyin ideas: “[W]hat property can a man have in ideas? Whilst he keepsthem to himself they are his own, when he publishes them they are hisno longer. If I take water from the ocean, it is mine, if I pour it back itis mine no longer.” 66 Therefore, although there was a constant conflictbetween the private property and public policy visions, the public policyvision was a more compelling argument throughout the early Englanddevelopment of copyright.

A similar conclusion can be drawn regarding the United States. TheCopyright Clause in the Costitution and the Copyright Act of 1790 weremodeled on the Statute of Anne.67 The Copyright Clause gives Congressthe power “to promote the Progress of Science and useful Arts, by secur-ing for limited Times, to Authors and Inventors, the exclusive Right totheir respective Writings and Discoveries.” 68 The language indicates theprotection of property rights in creative works was given to authors toinduce creativity and the public good. Congress enacted the CopyrightAct of 1790. This first U.S. copyright statute granted a fourteen-yearcopyright, renewable once, to the authors of maps, charts and books.69

The authors were given the exclusive right to “print, reprint, publish orvend” their works.70 The statute was named “an act for the encourage-ment of learning,”71 demonstrating that the public policy vision was itsunderpinning idea.

Just as the publishers in the United Kingdom claimed that theyowned common law copyright, authors in the United States invokedthe private property vision and turned to the courts claiming a perpet-ual common law copyright. However, states are the sources of commonlaw in the United States.72 Thus, a lawsuit concerning whether a com-mon law copyright survived the federal copyright act was also the battlebetween state and federal powers.73 The first decision by the Supreme

65According to legal historians Patterson and Lindberg, the Donaldson case had beenmisread because of incomplete records of the case. But, Patterson and Lindberg wrotethat Cobbett’s Parliamentary History, published in 1817, provides a more completereport of the case and what a more correct reading of the case is. See id.

66Id. at 39 (quoting Donaldson v. Beckett, 17 Cobbett’s Parl. Hist. at 962).67Id. at 47.68U.S. CONST. art. I, § 8.69That the act gave a fourteen-year copyright not only to books but also to maps and

charts reflects “the very practical concerns of a new republic whose geography musthave seemed unlimited.” GOLDSTEIN, supra note 31, at 41.

70EDWARDS SAMUELS, THE ILLUSTRATED STORY OF COPYRIGHT 15 (2000).718 Anne, cap. 19; 1 Stat. 124, 1st Cong., 2d Sess., ch. 15 (1790).72Id. at 42.73Id.

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Court of the United States on copyright, Wheaton v. Peters,74 decided in1834, addressed the question.

The Wheaton case involved a dispute between Henry Wheaton, thethird Reporter of Decisions of the Supreme Court, and Richard Pe-ters, the fourth. Goldstein summarized the facts of the case. Peterspublished a condensed six-volume edition of his predecessors’ twenty-four volumes.75 The condensed volumes — priced almost 75% belowWheaton’s volumes — enjoyed great commercial success.76 However,Peters’s profit meant Wheaton’s loss, and Wheaton filed suit againstPeters.77 Wheaton’s counsel argued that the framers of the Constitu-tion did not intend to take away the common law copyright.78 The Courtrejected this argument and ruled that once a book is published the Copy-right Act displaces the common law and becomes the exclusive sourceof rights in a published work.79

Justice John McLean, writing for the Court, first declared, “That anauthor at common law has a property in his manuscript . . . cannot bedoubted; but this is a very different right from that which asserts a per-petual and exclusive property in the future publication of the work, afterthe author shall have published it to the world.”80 Then he noted thatan author’s common law copyright had not been recognized in England,referring to the Donaldson case. He concluded that “Congress, then, bythis act [Copyright Act of 1790], instead of sanctioning an existing right,as contended for, created it.”81

The importance of the Wheaton case, as legal historians Pattersonand Lindberg pointed out, is that the principle chosen — the public pol-icy vision — served as the premise for copyright rules in the future.82

Patterson also wrote that subsequent lawmakers in the United Statesgave greater weight to the idea of copyright as society’s grant of a lim-ited monopoly than to the idea of it as a natural law property right ofauthors.83

7433 U.S. 591 (1834). For a detailed discussion of the Wheaton case, see PATTERSON,supra note 41, at 203–12.

75The condensed edition was titled “Condensed Reports of Cases in the SupremeCourt of the United States, Containing the Whole Series of the Decisions of the Courtfrom its Organization to the Commencement of Peters’ Reports at January Term 1827.”GOLDSTEIN, supra note 31, at 42–43.

76GOLDSTEIN, supra note 31, at 43.77Id.78Id.7933 U.S. 591, 658 (1834).80Id. at 595.81Id. at 661.82See PATTERSON & LINDBERG, supra note 31, at 63 (arguing “the statutory-monopoly

principle” determined the nature of U.S. copyright).83See L. Ray Patterson, Understanding the Copyright Clause, 47 J. COPYRIGHT SOC’Y

U.S.A. 365 (2000). Patterson listed five notable cases from 1834 to 1992 in which the

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The Wheaton case and subsequent copyright statutes, however, didnot displace all common law copyright. For published works, the statu-tory copyright replaced the common law. For unpublished works, com-mon law copyright survived. According to Duke law professors DavidLange and Jefferson Powell, common law copyright (sometimes called“the right of first publication”) continued to exist until the 1976 Actincorporated most unpublished works into its scheme.84 Only evanes-cent works (unrecorded expression, for example) and works formallyexcluded from federal protection are now subject to protection at thecommon law.85

Moreover, the idea that copyright is an author’s right, in some vaguemeasure based on his or her natural rights, lives on. Contemporaryadvocates of the private property vision contend that the author’s rightthat copyright law protects is inherent and inevitable. The claims areones of moral supremacy. For example, the Copyright Assembly,86 acoalition of copyright owners, announced: “Creative works are privateproperty. Taking private property without permission is wrong.”87

Why is it “natural” or “just” that an author has a property right inher creation? The private property vision invokes a Lockean labor-desertjustification.88 According to Boston College law professor Alfred Yen’sexplanation, John Locke assumed that people had a natural right of

Supreme Court “acted to protect copyright law against the intrusion of natural lawurged by copyright holders in an effort to expand the copyright monopoly beyond itsconstitutional boundaries.” Id. at 384. The five cases are (1) Wheaton v. Peters, 33U.S. (8 Pet.) 591 (1834) (rejecting Wheaton’s plea for a federal common law copyrightand holding that copyright for published works required strict compliance with allthe terms of the statute); (2) Baker v. Selden, 101 U.S. 99 (1880) (declaring copyrightprotects the expression, not the idea); (3) Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908)(establishing the rule that the copyright owner’s first sale exhausted the right to vend);(4) Universal City Studios v. Sony Corp, 464 U.S. 417 (1984) (finding an individual whovideotaped copyrighted motion pictures off-the-air did not infringe the copyright); and(5) Feist Publishing Co. v. Rural Telephone Co., 499 U.S. 340 (1991) (declaring factssuch as names and telephone numbers could not be copyrighted). Congress “rejectedthe teaching of all of them in the Digital Millennium Copyright Act,” Patterson argued.He wrote that “the DMCA creates a natural law monopoly (contrary to Wheaton) fordata (contrary to Baker and Feist), and provides the entrepreneur with absolute controlof access (contrary to Bobbs-Merrill and Sony). Id. at 384–87.

84DAVID L. LANGE & H. JEFFERSON POWELL, NO LAW: INTELLECTUAL PROPERTY IN THEIMAGE OF AN ABSOLUTE FIRST AMENDMENT 13 (2009).

85Id.86The Copyright Assembly, formed in February 2000, consists of representatives rang-

ing from professional and amateur sports organizations, cable and network broadcaststations, music labels, advertisers, software developers, publishers, television program-mers, and film guilds. Its Web site, http://www.copyrightassembly.org, provides a list ofits members.

87Our Perspective (n.d.), at http://www.copyrightassembly.org/perspective/default.htm.

88See, e.g., Alfred C. Yen, Restoring the Natural Law: Copyright as Labor and Posses-sion, 51 OHIO ST. L.J. 517, 523 (1990); James V. DeLong, Defending Intellectual Property

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property in their bodies.89 Since people owned their bodies, they alsoowned the labor of their bodies and, by extension, the fruits of thatlabor.90 Thus, each person who mixed his or her labor with naturalresources became morally entitled to property rights in the resultingobject.91 Locke did not offer any insight into whether his labor-desertjustification could rationalize a natural law property right in intangiblegoods such as literary works.92 However, people of the private propertyvision see the extension of the Lockean labor-desert justification fromproperty rights in tangible goods to property rights in intangible goods.93

The Economics of Copyright

The importance of ensuring authors’ economic gains thrives as a keypoint in copyright law. For example, the Supreme Court reported inMazer v. Stein in 1954: “The economic philosophy behind the clauseempowering Congress to grant patents and copyrights is the convictionthat encouragement of individual effort by personal gains is the best wayto advance public welfare.”94 Both visions agree that protecting authors’economic interests in their works is critical. However, they differ on theproper scope of the protection.

The disagreement over the economics of copyright is related to thefundamental features of intangible goods. One of those fundamentalfeatures is that the consumption of intangible goods is non-rivalrous.If someone writes a song, others can sing it without lessening the au-thor’s ability to sing it, whereas only one person can drive a car at anypoint in time. Ideas can be shared with no reduction in the amountthe owner can consume.95 Intangible goods also are non-exhaustive,meaning the resource is not depleted by use.96 And intangible goodsare non-excludable, meaning that an author cannot exclude others fromusing or getting access to an idea unless he or she keeps it to himself or

in COPY FIGHTS: THE FUTURE OF INTELLECTUAL PROPERTY IN THE INFORMATION AGE 24(Adam Thierer et al. eds., 2002).

89See Yen, supra note 88, at 523.90Id.91Id.92Richard A. Epstein, Liberty versus Property? Cracks in the Foundations of Copyright

Law, ¶ 28 (2004), at http://www.law.uchicago.edu/Lawecon/index.html.93Chicago University law professor Richard Epstein points out that commentators

James DeLong and Adam Mossoff see a tight connection between natural law andproperty right in intangible goods. Id. at 4. Epstein further claims that the justificationcan be stronger in property right in intangible goods because intellectual property isthe result of pure labor. Id. at 29.

94347 U.S. 201, 219 (1954).95See LESSIG, supra note 25, at 132.96See DeLong, supra note 88, at 27.

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herself. These special features of intangible goods make the function ofthe market almost useless because the market by itself cannot providea proper motivation for the production of intangible goods. The featuresintroduce the need for a legal sanction against unauthorized copying,that is, the need for copyright law.

Another feature of intangible goods is that they are costly to create butcheap to copy. This feature has been magnified as technology develops.Before the printing press, there was not much need to protect an author’scopyright because copying was burdensome and expensive. However,now one may spend several years and several thousand dollars to writea computer program that can be copied for the price of a diskette or canbe transmitted free via the Internet. As the cost of copying decreasedwith the development of technology — the printing press, photocopyingmachine, videocassette recorder and computer — the need for a legalsanction against copying became evident to ensure the production ofcreative works.

How strong should the legal sanction against unauthorized copyingbe? Advocates of the private property vision consider authors’ propertyrights in intangible goods as similar to their property rights in tangiblegoods. Thus, proponents of the private property vision emphasize theimportance of private ownership as the solution to ensure the produc-tion of intangible goods,97 just like they argue that private ownership isthe best way to avoid the “tragedy of the commons”98 in tangible goods.This metaphor of the commons demonstrates the central idea that publicownership is inefficient because no owners who use land without owningit have an incentive to take care of it.99 Thus, the private property vision

97See, e.g., DeLong, supra note 88, at 25; Epstein, supra note 92, at 23; Trotter Hardy,Property (and Copyright) in Cyberspace, 1996 U. CHI. LEGAL F. 217 (1996) (discussingcopyright as property).

98The phrase, “tragedy of commons,” was popularized by biologist Garrett Hardin inhis 1968 article published in Science magazine. See Garrett Hardin, The Tragedy of theCommons, 162 SCIENCE 1243 (1968). Hardin cited an 1833 article by a British clergymanWilliam Foster Lloyd. Writing about the English commons, Lloyd wrote that each herds-man would be guided by self-interest and would try to keep as many cattle as possible onthe commons which ultimately would result in ruining the common property. Whetheran actual tragedy of commons existed historically is a subject of debate. See, e.g., GarrettHardin, Tragedy of the Commons (n.d.), THE CONCISE ENCYCLOPEDIA OF ECONOMICS, athttp://www.econlib.org/library/Enc/TragedyoftheCommons.html; John Quiggin, Fallacyof the Commons, May 6, 2004, at http://johnquiggin.com/index.ph?p=2074.

99According to Stanford law professor Mark A. Lemley, this view mainly emergesfrom the Chicago School law-and-economics movement. Mark A. Lemley, Romantic Au-thorship and the Rhetoric of Property, 75 TEX. L. REV. 873, 897 (1997). The law-and-economics movement emerged at the University of Chicago. The Chicago model positsthat “rational actors, in the absence of legal constraints, are deemed to find it in theirbest interest to discover and to exploit all available opportunities for mutually beneficialexchange, in terms of willingness to pay, given the initial distribution of property rights.”Charles K. Rowley, An Intellectual History of Law and Economics: 1739–2003, in THE

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proposes that the more copyright law restricts copying, the more cre-ative works will be produced. In other words, the economic argumentof the private property vision is that the greatest protection for au-thors’ economic interests will generate the greatest number of creativeworks.

On the other hand, the public policy vision suggests that societyas a whole is better off when copyright owners’ economic benefits areweighed against users’ access costs. Thus, the economic argument of thepublic policy vision has been a constant effort to find the optimal point,balancing benefit with cost. The optimal point is thought to lie some-where between an absolute copyright protection (one) and no copyrightprotection (zero). Attempts to find the optimal point using empiricaldata have produced conflicting results. For example, then-law professorStephen Breyer, who later became a Supreme Court justice utilized aseminal economic analysis in his 1970 article to examine if copyrightis necessary to provide adequate incentives to create works.100 He con-cluded that the economic case for copyright protection was tenuous inmany segments of the publishing market and that there were viablebusiness models that worked in some segments of print publishing evenin the absence of copyright protection.101

Most proponents of the public policy vision, although they agree withthe axiom that benefit and cost should be considered together, are sus-picious of purely economic reasoning.102 As University of Michigan lawprofessor Jessica Litman wrote, many think that it is almost impossible

ORIGINS OF LAW AND ECONOMICS: ESSAYS BY THE FOUNDING FATHERS 17 (FrancescoParisi & Charles K. Rowley eds., 2005).

100See Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books,Photocopies, and Computer Programs, 84 HARV. L. REV. 281, 291–321 (1970).

101Id. at 350–51. Within one year, law student at UCLA law student Barry W. Tyermanrefuted Breyer’s argument. Barry W. Tyerman, The Economic Rationale for CopyrightProtection for Published Books: A Reply to Professor Breyer, 18 UCLA L. REV. 1100(1971) (arguing that Breyer’s lead time analogy was based upon the nineteenth cen-tury economics of publishing industry and therefore its validity is questionable in to-day’s publishing market, and that other alternative methods of maintaining publisherrevenues were likely to be impractical and inapplicable). Breyer answered Tyerman’scriticism in another article, Stephen Breyer, Copyright: A Rejoinder, 20 UCLA L. REV.75 (1972). Meanwhile, there is an argument that new technologies, social norms andweaker copyright protection may create viable business models for financing new cre-ation. See Mark S. Nadel, How Current Copyright Law Discourages Creative Output:the Overlooked Impact of Marketing, 19 BERKELEY TECH. L.J. 785 (2004).

102See, e.g., Tom W. Bell, Defending Intellectual Property, in COPY FIGHTS: THE FUTUREOF INTELLECTUAL PROPERTY IN THE INFORMATION AGE 24 (Adam Thierer et al. eds.,2002) (arguing that striking a balance is impossible because political authorities cannotmeasure the economic factors that would have to go into a calculation of the optimal levelof copyright and patent protection); LESSIG, supra note 25, at 134 (arguing that thereis no way to know, in principle, whether increasing or decreasing the rights grantedunder intellectual property law will lead to an increase in the production of intellectualproperty); Yen, supra note 88, at 542–43 (concluding that “the empirical information

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to find the optimal point because “empirical data is not only unavailable,but is also literally uncollectible.”103 In addition, many commentatorsnoted that purely economic reasoning does not properly address thetension between copyright law and First Amendment freedoms.104

The disagreement between the two visions intensified in the digitalera. Digital technology made copying cheaper, easier and nearly perfect.The Internet made dissemination of copies cheaper, easier and instantwithout a geographical limitation. As a result, digital copies becamewidely available all over the Internet. Those who hold the private prop-erty vision mourned the financial losses of authors and predicted thatcultural industries would perish if unauthorized digital copies were tocontinue to be made. As technology lowers the cost of copying, copyrightholders propose, copyright law should increase the cost of copying.

The Clinton administration’s 1995 White Paper on Intellectual Prop-erty and the National Information Infrastructure seemed to endorsethe private property vision in that the white paper described the natureof cyberspace as anarchy and promised to strengthen copyright law.105

Similarly, William and Mary College law professor Trotter Hardy, whowrote property rights in intangible goods in cyberspace are not differ-ent from property rights in intangible goods offline or property rights intangible goods, suggested that Congress must not balance the interestsof information producers and information consumers but instead mustcreate “an unadorned right of ownership in authors” because “a balancewill be drawn through individual market transactions.”106

The public policy vision, however, suggests that the existence ofwidespread digital copying and transmission does not necessarily meanthat authors are losing money and suggests that a new business model

necessary to calculate the effect of copyright law on the actions of authors, potentialdefendants, and consumers is simply unavailable, and is probably uncollectible”).

103Jessica Litman, The Public Domain, 39 EMORY L.J. 965, 997–98 (1990).104See, e.g., LAWRENCE LESSIG, FREE CULTURE: HOW BIG MEDIA USES TECHNOLOGY

AND THE LAW TO LOCK DOWN CULTURE AND CONTROL CREATIVITY (2004); LAWRENCELESSIG, REMIX (2008); NEIL WEINSTOCK NETANEL, COPYRIGHT’S PARADOX (2008); C. Ed-win Baker, First Amendment Limits on Copyright, 55 VAND. L. REV. 891 (2002); YochaiBenkler, Free as the Air to Common Use: First Amendment Constraints on Enclosureof the Public Domain, 74 N.Y.U. L. REV. 354 (1999); Lawrence Lessig, Copyright’s FirstAmendment, 48 UCLA L. REV. 1057 (2001); Neil Weinstock Netanel, Asserting Copy-right’s Democratic Principles in the Global Arena, 51 VAND. L. REV. 217 (1998); NeilWeinstock Netanel, Locating Copyright Within the First Amendment Skein, 54 STAN. L.REV. 1 (2001).

105U.S. Department of Commerce, Task Force — Working Group on IntellectualProperty Rights, Intellectual Property and the National Information Infrastructure:The Report of the Working Group on Intellectual Property Rights, available at http://www.uspto.gov/web/offices/com/doc/ipnii/.

106Trotter Hardy, Not So Different: Tangible, Intangible, Digital, and Analog Works andTheir Comparison for Copyright Purposes, 26 U. DAYTON L. REV. 211, 245 (2001).

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should be found to ensure authors’ economic gains. Advocates of thepublic policy vision also do not agree that copyright law should be ex-panded to impose a stronger legal sanction against digital copying. Thepublic policy vision proponents argue that a hasty decision to maximizeauthors’ economic gains will harm the development of technology, theencouragement of learning, and the creativity of future authors.107 Also,the public policy advocates propose that there are an increasing num-ber of authors whose creations are not entirely motivated by economicgains. Harvard law professor Steven Shavell, for instance, argued thatacademic publishing would still flourish without copyright of academicwriting because “gaining scholarly esteem,” not economic incentives,motivates academics to publish.108 Lange and Powell wrote that “thetruth is that we simply do not know”109 whether copyright has been, oris now, essential to cultural production.

The Production of Creative Works

With an exception of works made for hire,110 copyright is given tothe author who creates a work. Duke University law professor JamesBoyle asked this interesting question: Where is the moral or utilitarianjustification for the existence of an author’s property right? The mostobvious answer, according to Boyle, is that people have a notion thatauthors are special: “We do not think it is necessary to give car workersresidual property rights in the cars that they produce — wage labor isthought to work perfectly well.”111

Boyle’s question is relevant to another point on which the privateproperty and public policy visions disagree. The two visions differ onhow creative work is produced and what an author is. The private prop-erty vision presumes the image of an author “struggling alone in his

107See, e.g., LESSIGG FREE CULTURE, supra note 104; LESSIG, REMIX, supra note 104;NETANEL, supra note 104;

108Steven Shavell, Should Copyright of Academic Works Be Abolished?, at http://cyber.law.harvard.edu/sites/cyber.law.harvard.edu/files/Copyright%207-17HLS-2009.pdf(last visited Sept. 10, 2009).

109LANGE & POWELL, supra note 84, at 66.110Works made for hire is an important exception to a general rule that copyright

ownership vests initially in the author of the work. If the work is for hire, “[T]heemployer or other person for whom the work was prepared is considered the author,”and owns the copyright. See 17 U.S.C. § 201(b) (2006).

111JAMES BOYLE, SHARMANS, SOFTWARE, AND SPLEENS: LAW AND THE CONSTRUCTIONOF THE INFORMATION SOCIETY 53 (1996).

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garret” and creating “out of thin air.”112 The vision also posits creativityas a personal quality that an author has in his or her intrinsic na-ture. These views of the private property vision can be characterizedas romantic authorship.113 On the other hand, the public policy visionproposes that romantic authorship is myth. The public policy visionsuggests that cultural production is always “a matter of appropriationand transformation”114 in that all authors build upon the past and alloriginal works are in part derivative.

The romantic author notion was invoked by authors in the early his-tory of copyright law in England. University of California at Santa Bar-bara English professor Mark Rose, tracing the origin of the romantic au-thorship idea, wrote that Joseph Addison, who lobbied for the Statuteof Anne, invoked the special claims of authorship: Addison “spoke ofthe author’s life spent in ‘noble Enquiries,’ separated from the ‘rest ofMankind’ in order to study ‘the Wonders of Creation, the Governmentof his Passions, and the Revolutions of the World.”’115 Rose also notedthat comments from William Blackstone, an English jurist and profes-sor who wrote Commentaries on the Laws of England, explained therelationship between the discourse of original genius and that of prop-erty rights: “When a man by the exertion of his rational powers hasproduced an original work, he has clearly a power to dispose of thatidentical work as he pleases, and any attempt to take it from him, orvary the disposition he has made of it, is an invasion of his right ofproperty.”116

The romantic author notion also is found in U.S. copyright jurispru-dence. Two Supreme Court decisions — Burrow-Giles Lithographic Co.v. Sarony117 in 1884 and Bleistein v. Donaldson Lithographing Co.118

112GOLDSTEIN, supra note 31, at 61.113See MARK ROSE, AUTHORS AND OWNERS: THE INVENTION OF COPYRIGHT (1993). In

the preface, Rose explained the origin of romantic authorship:The claim that there is a connection between the invention of the author as original geniusand the invention of copyright was prefigured by Benjamin Kaplan in An Unhurried View ofCopyright (1967), still one of the most penetrating discussions of copyright law we have. Butin its recent phase this enterprise has been stimulated by the questions about authorshipraised by Roland Barthes and Michael Foucault. The first extended consideration of theinteraction between aesthetic and legal developments in the eighteenth century that Iknow was Martha Woodmansee’s important “The Genius and the Copyright: Economic andLegal Conditions of the Emergence of the ‘Author”’(1984), which focused on Germany inthe latter part of the century.

Id. at viii-ix.114Id. at 135.115Id. at 137.116WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 1765–1769

405–06 (1979).117111 U.S. 53 (1884).118188 U.S. 239 (1903).

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in 1903 — are prominent examples. The Sarony decision establishedoriginality as an essential requirement for copyright protection undercopyright law.119 The Bleistein decision ruled that authorship, not thequality of work, is the basis for copyright protection.120

The Sarony case involved the question of whether photographs werewritings of authors and, therefore, could be protected under the 1790Copyright Act.121 The Court ruled that the photography in question— a studio portrait of Oscar Wilde — was an original work of artand that photographer Napoleon Sarony was its author.122 Yen wrotethat the Sarony ruling “decided the question of copyrightability by ask-ing whether the work in question was ‘original,’ i.e., the result of theplaintiff ’s own mental conception.”123 Similarly, Rose wrote that, in theSarony decision, “[N]ot only did the camera disappear as a significantfactor in the production of the photograph, but so did Oscar Wilde.”124

Wilde, the subject of the photograph, was no longer important as thepower of authorship became a deciding factor in copyright protection.

Rose also argued that Bleistein v. Donaldson Lithographing Co.demonstrates how the Court represented authorship based on notionsof property, originality and personality.125 The question before the Courtin the Bleistein case was whether a circus advertising poster depictingacrobats performing on bicycles could be protected under copyright law.The Court affirmed copyright protection for the poster,126 and JusticeOliver Wendell Holmes wrote for the Court that even if the poster wasa direct copy from a real performance it would be protected:

The opposite proposition would mean that a portrait by Velasquez orWhistler was common property because others might try their hand onthe same face. Others are free to copy the original. They are not free tocopy the copy. The copy is the personal reaction of an individual uponnature. Personality always contains something unique. It expresses itssingularity even in handwriting, and a very modest grade of art has in it

119See Yen, supra note 88, at 531. According to Stanford University law professor PaulGoldstein, in Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884), the Courtadopted the creativity criterion. GOLDSETIN, supra note 31, at 49.

120See Yen, supra note 88.121111 U.S. 53, 54–55 (1884).122Id. at 60.123Yen, supra note 88, at 532–33.124ROSE, supra note 113, at 136.125Rose wrote that the basis of Justice Holmes’s decision was the notion of “personality.”

Id. at 114. Yen wrote that the Court stressed that copyrightability ultimately restsupon the intellectual labor of the author and refused to assess the artistic value of theplaintiff ’s work. Yen, supra note 88, at 533.

126188 U.S. 239, 252 (1903).

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something irreducible, which is one man’s alone. That something he maycopyright.127

Justice Holmes’ opinion not only invoked notions of romantic author-ship to justify copyright protection in the advertising poster but alsoelided the question of how a corporation could be entitled to copyrightthe poster.128 In Bleistein, copyright over the advertising poster — pre-pared by employees of a corporation — was given to the corporation, notthe employees.

Indeed, corporate ownership over copyrighted materials has steadilyincreased129 since the 1909 Copyright Act first codified the work for hiredoctrine.130 And yet, copyright holders often use the romantic author-ship for emotional appeal when arguing in favor of copyright protectionfor the work of a lonely, starving artist. Stanford University law profes-sor Paul Goldstein wrote:

It is no accident that ASCAP keeps creators to the fore. . . . The ap-peal is emotional — public sympathy is stirred by the image of an artiststruggling alone in his garret — but also rational. Copyright is aboutauthorship, about sustaining the conditions for creativity that enable anartist to create out of thin air and intense, devouring labor an AppalachianSpring, a Sun Also Rises, a Citizen Kane. In a culture that depends on themarketplace, creative authorship is central.131

Scholars who advocate the public policy vision argue that this ro-mantic notion of authorship is problematic. They argue that the ideaof romantic authorship is a modern invention. For instance, medievalchurch writers put the work of scribe and the copyist above that of au-thors.132 The public policy vision holds that an author is represented asjust one of the numerous craftsmen involved in the production of a book

127Id. at 299–00.128See Catherine L. Fisk, Authors at Work: The Origins of the Work-for-Hire Doctrine,

15 YALE J.L. & HUMAN. 1, 57–59 (2003).129The Supreme Court, for instance, noted in Community for Creative Non-Violence v.

Reid that about 40% of all copyright registrations were for works for hire as of 1955.490 U.S. 730, 737 n.4 (1989).

130See Fisk, supra note 128, at 62.131GOLDSTEIN, supra note 31, at 60–61.132See BOYLE, supra note 111, at 53.

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in eighteenth-century in Germany133 and that the author figure aroseduring the later debates over who should own the copyright.134

Moreover, scholars of the public policy vision argued that the ideaof romantic authorship does not closely reflect contemporary writingpractices because most writing today is in fact collaborative.135 Thepublic policy vision also posits that electronic technology is playing acrucial role in promoting writing practices in which the identities ofindividual contributors to shared dynamic texts are deemphasized andtheir useful contributions effectively merged.136

Finally, the public policy vision suggests that the romantic authorshipidea has been used to obscure the intrinsic tension in copyright law. Theidea of romantic authorship undervalues the interests of both the sourceof and the audiences for copyrighted work and, therefore, tends to skewthe debate in copyright cases in favor of the author,137 some scholarsof the public policy vision argue. Although not all commentators on thepublic policy vision agree with the explanatory power of the romanticauthorship in copyright jurisprudence,138 a consensus among scholarsof the public policy vision is that the romantic authorship idea hasideological power in invoking private interests of authors.

Those who advance the public policy vision argue that the produc-tion of creative works does not entirely depend on individual creativity.Also, the public policy vision notes that contemporary authors owe in-tellectual debts to prior authors and that all original works are in part

133Martha Woodmansee, The Genius and the Copyright: Economic and Legal Conditionsof the Emergence of the “Author,” 17 EIGHTEENTH-CENTURY STUD. 425 (1984).

134See id. at 426. See also Peter Jaszi, Toward a Theory of Copyright: The Metamor-phoses of “Authorship,” 1991 DUKE L. J. 455 (tracing some of the specific linkages be-tween the ideology of authorship and the formation of particular doctrinal structures inthe U.S. copyright law).

135See Martha Woodmansee, On the Author Effect: Recovering Collectivity, in THE CON-STRUCTION OF AUTHORSHIP 15 (Martha Woodmansee et al. eds., 1994).

136See Peter Jaszi, On the Author Effect: Contemporary Copyright and Collective Cre-ativity, in THE CONSTRUCTION OF AUTHORSHIP 55 (Martha Woodmansee et al. eds.,1994).

137See BOYLE, supra note 111, at 98–114 (arguing that together, the figure of theromantic author, the theme of originality, and the conceptual distinction between ideaand expression seem to offer one of the most convincing mediations of the tensions incopyright law). See also ROSE, supra note 113, at 135 (writing that “the persistence ofthe discourse of original genius implicit in the notion of creativity not only obscures thefact that cultural production is always a matter of appropriation and transformation,but also elides the role of the publisher — or, in the case of films, of the studio or producer— in cultural production”).

138See Lemley, supra note 99, at 882–88 (pointing out the weakness of the theory ofromantic authorship). See also Yen, supra note 88, at 546–57 (suggesting that naturallaw can help maintain a balanced perspective on copyright by justifying both authors’rights and a strong public domain).

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derivative.139 Therefore, the public policy vision emphasizes the impor-tance of the fair use doctrine140 and the public domain.141

The Escalated Conflict Between the Two Visions

In recent years, proponents of the public policy vision have expressedtheir concern over copyright holders’ efforts to expand copyright pro-tection to the extent that it threatens innovation, creativity and users’freedoms. James Boyle, for instance, wrote that contemporary intellec-tual property policy is “in the sway of a maximalist ‘rights-culture,”’142

and that there is pressure to harmonize laws from nation to nationonly “upwards, adopting the strongest protections of facts, the longestcopyright terms, the greatest scope of patentability.”143

What are the bases of the concern expressed by scholars of the publicpolicy vision? Amendments to the copyright law are illustrative. In thelast forty years, Congress has extended the copyright term for existingworks eleven times including the latest extension — the Copyright TermExtension Act (CTEA)144 — that added twenty additional years to theterms of existing copyrights.145 The average term of copyrights was just

139See, e.g., Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105,1107–10 (1990) (writing that there is no such thing as a wholly original thought orinvention and each advance stands on building blocks fashioned by prior thinkers).

140Fair use is a reasonable and limited use of a copyrighted work without the author’spermission, such as quoting from a book in a book review or using parts of it in a parody.Fair use is a defense to an infringement claim, depending on the following four statutoryfactors under section 107 of the Copyright Act of 1976: (1) the purpose and character ofthe use, (2) the nature of the copyrighted work, (3) the amount of the work used, and (4)the economic impact of the use. BLACK’S LAW DICTIONARY 617 (Bryan A. Garner et al.eds., 17th ed. 1999).

141“Public domain” is the realm of publications, inventions and processes that are notprotected by copyright or patent. Things in the public domain can be used by anyonewithout liability for infringement. Id. at 1243.

142James Boyle, A Manifesto on WIPO and the Future of Intellectual Property, 2004DUKE L. & TECH. REV. 0009, available at http://www.law.duke.edu/journals/dltr/articles/2004dltr0009.html. Yale University law professor Yochai Benkler presented a similarpoint of view, noting exclusive reliance on private provisions of the public goods hasbeen salient in three — physical, logical and content — layers. Yochai Benkler, Property,Commons, and the First Amendment: Towards a Core Common Infrastructure, WhitePaper for the First Amendment Program Brennan Center for Justice at NYU School ofLaw (2001), available at http://www.benkler.org/WhitePaper.pdf.

143Boyle, supra note 142.144Pub. L. No. 105–298, 112 Stat. 2827 (1998) (codified as amended in scattered sections

of 17 U.S.C.).145See Lawrence Lessig, Commentary: The Creative Commons, 65 MONT. L. REV. 1

(2004).

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32.2 years in 1973 because copyrights had to be renewed after twenty-eight years, and 85% of copyrighted works were never renewed.146 How-ever, after changes in the 1976 Act, and especially after the CTEA, theaverage term is now the maximum.147 The average term for corporateworks such as Disney movies has tripled in the last thirty years.148

The anti-circumvention provisions of the Digital Millennium Copy-right Act (DMCA) have been also criticized. The DMCA anti-circumvention provisions establish both civil and criminal penaltiesfor circumventing technological measures that effectively control ac-cess to digital content and products, and for distributing technologiesdeveloped or marketed to circumvent those measures.149 Traditionallypermissible access to or use of digital content may be considered illegalbecause the anti-circumvention provisions — albeit a statutory exemp-tion for nonprofit libraries, archives and educational institutions150—make the mere act of circumventing illegal. This means anyone whotampers with technological locks (decrypting an access control deviceon a DVD copy of the movie Schindler’s List, for example) is violat-ing the anti-circumvention provisions even when the resulting accessor copy would constitute a fair use (using a scene from the movie for aschool project about the Holocaust, for example). Moreover, University ofCalifornia at Los Angeles law professor Neil Weinstock Netanel pointedout that under the law, content providers are provided with “paracopy-right”151 that allow them to exercise control that is significantly beyondthe traditional scope of control obtained under the 1976 Copyright Act.Most recently, the Electronic Frontier Foundation issued a white paper,“Unintended Consequences: Twelve Years under the DMCA,” report-ing cases where the anti-circumvention provisions have been invokednot against copyright infringers but against consumers, scientists andlegitimate competitors.152

In addition, in Eldred v. Ashcroft153 a group of archivists and pub-lishers of works in the public domain challenged the constitutionalityof the CTEA.154 The plaintiffs’ arguments were essentially two-fold: (1)Congress exceeded its power under the Copyright Clause by extending

146Id. at 5.147Id.148Id.149See 17 U.S.C. §1201 (2000).150See id. at § 1201 (d).151NEIL WEINSTOCK NETANEL, COPYRIGHT’S PARADOX 186 (2008).152Electronic Frontier Foundation, Unintended Consequences: Twelve Years under the

DMCA (Mar. 2010), http://www.eff.org/wp/unintended-consequences-under-dmca.153537 U.S. 186 (2003).154Lessig represented the plaintiffs.

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existing copyrights, and (2) the CTEA’s extension of existing and futurecopyrights violated the First Amendment.155

The Supreme Court rejected both arguments. First, the Court es-sentially exercised judicial restraint to hold: “[T]he CTEA is a rationalenactment; we are not at liberty to second-guess congressional deter-minations and policy judgments of this order, however debatable orarguably unwise they may be.”156 In addition, the Court failed to rec-ognize the conflict between copyright law and the First Amendment.After reiterating the familiar axiom that copyright is “the engine of freeexpression,”157 the Court underlined that First Amendment accommo-dations — the idea/expression dichotomy and the fair use doctrine —are built in copyright law.158

Scholars in the public policy vision are skeptical about the law’sbuilt-in accommodations, however. Netanel, for instance, wrote that “thevague, unpredictable nature of the idea/expression dichotomy and fairuse privilege induces considerable speaker self-censorship.”159 He alsoargued that people cannot rely on lower courts because many of lowercourts fall prey to Blackstonian view of copyright, nor Congress becauseCongress is hugely influenced by major content providers.160

As an alternative to the current maximalist rights-culture, Lessigand others of the public policy vision initiated a free culture movement.Lessig’s 2004 book, Free Culture, argued that changes in copyright lawand technology resulted in a shift from a free culture to a restrictive,permission culture.161 The free culture movement aims to promote free-dom to create, freedom to use cultural resources, and freedom to criticizeothers using the culture around them.162 The term free means free inthe sense of freedom, not in the sense of no payment.163 A project calledthe Creative Commons is one of the most well-known and successful

155Eldred, 537 U.S. at 192–98.156Id. at 208.157Id. at 219 (citing Harper & Row v. Nation, 471 U.S. 539, 558 (1985)).158Id.159NETANEL, supra note 151, at 181. Also, Lessig wrote, “[F]air use is the right to

hire a lawyer” and “the right to hire a lawyer is useless to 95 percent of those whowant to engage in creative activity.” Andrew Albanese, Report: Fair Use Now Eroding:Need for Clearinghouse, Legal Support to Stem Tide, LIBRARY J. (Jan 15, 2006), at http://www.libraryjournal.com/article/CA6298491.html (quoting Lessig’s remarks to LibraryJournal in 2004).

160Id. at 170.161This is a pervasive theme in LAWRENCE LESSIG, FREE CULTURE: HOW BIG MEDIA

USES TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL CREATIVITYpassim (2004).

162Id. See also Students for Free Culture, Home, at http://freeculture.org (last visitedMay 8, 2010).

163See LESSIG, supra note 161, at xv—xvi.

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initiatives of the free culture movement.164 The Creative Commons pro-vides a set of copyright licenses free for public use.165 Creators who arewilling to release their work under a Creative Commons license (CClicense) can go to the Creative Commons Web site and make a selectionamong various license options with a simple mouse-click. It is estimatedthat 130 million works are available under CC licenses as of 2008.166

In addition, a student organization called Students for Free Culture —founded by two university students who sued voting-machine manufac-turer Diebold for abusing copyright law — has more than forty chaptersaround the world.167 Meanwhile, activities of the following individualsalso demonstrate grass root efforts consistent with the premises of thepublic policy vision: Kembrew McLeod, a media studies scholar whotrademarked the phrase “freedom of expression” in 1998;168 Negativ-land,169 a sound collage band that advocates for unlicensed appropria-tions as necessary to a thriving culture; and Joy Garnett, a visual artistwho samples digital images.

The Direction of this Study

Since the proponents of the private property and public policy visionsof copyright believe in contrasting sets of values, they often disagreeon what is the appropriate scope and extent of copyright protection. Asa result, the advocates of each vision have advanced starkly differentinterpretations of copyright law and also have asked for changes incopyright law to be consistent with the values they believe in. The twovisions, therefore, have been the driving forces behind the developmentof copyright law. The form of protection embedded in copyright law is notsomething inevitable but a choice among various models to encouragethe production of creative works. And, the choice has been made througha contestable and mutable process. It is thus posited that the prevailing

164See Molly Shaffer Van Houweling, The New Servitudes, 96 GEO. L. J. 885 (2008).165See Creative Commons, Licenses, http://creativecommons.org/about/licenses/ (last

visited May 8, 2010).166Creative Commons, History, http://creativecommons.org/about/history/ (last visited

May 8, 2010).167Students for Free Culture, About, http://freeculture.org/about/ (last visited May 8,

2010).168KEMBREW MCLEOD, FREEDOM OF EXPRESSION: RESISTANCE AND REPRESSION IN THE

AGE OF INTELLECTUAL PROPERTY 335–38 (2007).169Negativland received the most attention after it was sued in 1991 for unauthorized

use of U2’s “I Still Haven’t Found What I’m Looking For.” The band — although itargued its sampling of the music was a fair use — settled out of court because it couldn’tafford the legal fees to mount a defense. See JOANNA DEMERS, STEAL THIS MUSIC: HOWINTELLECTUAL PROPERTY LAW AFFECTS MUSICAL CREATIVITY 128–31 (2006).

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vision has a greater influence on the scope and extent of copyrightprotection in a given time.

Under the assumption that the vision that is more readily acceptedin a contemporary society is likely to shape the scope and extent ofcopyright protection in the present and the future, the critical questionis which vision has been a more dominant force in recent years. Inaddressing this critical question, this study focuses on the mainstreamnews media coverage of copyright issues.

University of Pennsylvania professor emeritus and communicationpolicy scholar Oscar Gandy noted that policy actors, who have variousincentives to manipulate information environment, attempt to influenceothers’ actions by “controlling their access to and use of informationrelevant to those actions.”170 The attempt to produce influence throughinformation, labeled as “information subsidy,” often works because ofa simple economic rule guiding rational human behavior: A decisionmaker is likely to use the supplied information because the informationsource made it available at something less than the cost a decisionmaker would face in the absence of the subsidy.171

Gandy’s information subsidy theory thus suggests proponents of bothvisions have incentives to engage in various activities to advance theirviewpoints including direct lobbying to the legislature, initiating lit-igations, and shaping information environment in their favor. Infor-mation subsidies play an important role in the policy process becausethey provide practical knowledge relevant to the policy issue.172 In that,the supplied information defines the problems and the available solu-tions.173 Mainstream news media are important information channelsto which the advocates of the two visions supply information to promotetheir views.174 Also, the media’s coverage of pending legislation, ongoinglitigations and settlements can shed some light on the advocates’ otheractivities to build support for their visions.175 Thus, this study examinesmainstream news media coverage of copyright, for the examination canprovide an important indication of which vision has been more prevalentin the recent copyright debate.

170OSCAR H. GANDY JR., BEYOND AGENDA SETTING 61 (1982).171Id. at 39–52.172Id. at 55.173Id.174Gandy wrote that “scientific publications, legislative investigations, court testimony,

and news reports are generally seen to be relatively objective, unbiased informationchannels” so that information subsidizers have an incentive to deliver informationthrough these channels. Id. at 61.

175In addition to directly supplying information to journalists, information subsidizersmay engage in activities that will draw public and media attentions. Id. at 53.

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In addition, the study focuses on the mainstream news coverage be-cause mainstream media play an essential role in informing the publicof policy debates.176 For the past several decades, mass media scholarshave devised and tested theories (agenda-setting177 and framing,178 forexample) to demonstrate the effect of mainstream media on the pub-lic’s mind. Though it is hard to pinpoint the exact extent and natureof mainstream media’s influence — especially in the face of the pro-liferation of increasingly diverse communication channels — it can beassumed that mainstream media are a primary source from which thepublic learns about copyright law.179 Moreover, media sources provide“much of the factual and interpretative material”180 that affect the pol-icy preferences of the public. Unlike other non-technical issues of pub-lic importance that the public is relatively familiar with, furthermore,copyright is an issue that many who do not have a formal legal trainingmay feel comfortable in deferring to experts whose opinions are oftenreported in mainstream media.181 Thus, mainstream media coverage ofcopyright is likely to affect how the majority of copyright users — whoeither are not knowledgeable about details of copyright law or do nothave the necessary resources to litigate copyright issues — understandcopyright law and policy.182

It is important for the public to have a proper understanding of copy-right law and policy, for copyright law has become more relevant to indi-vidual members of the public in the digital age. As Jessica Litman notedin her book Digital Copyright, copyright law used to be relevant onlyto commercial and institutional actors because most copyright infringe-ment suits proceeded against businesses and institutions, not againstindividuals who make personal uses.183 As a result, copyright lawyers

176Gandy pointed out that news channels are identified as “productive sources of influ-ence because of their high degree of credibility, maintained by the convenient fiction ofjournalistic objectivity.” Id. at 86.

177See generally, DAVID PROTESS & MAXWELL E. MCCOMBS, AGENDA SETTING: READINGSON MEDIA, PUBLIC OPINION, AND POLICYMAKING (1991).

178See generally, Stephen D. Reese, Prologue — Framing Public Life: A Bridging Modelfor Media Research, in FRAMING PUBLIC LIFE: PERSPECTIVES ON MEDIA AND OUR UN-DERSTANDING OF THE SOCIAL 7 (Stephen D. Reese et al. eds., 2001).

179See generally, ELIZABETH M. PERSE, MEDIA EFFECTS AND SOCIETY 132–64 (2001).180BENJAMIN I. PAGE & ROBERT Y. SHAPIRO, THE RATIONAL PUBLIC: FIFTY YEARS OF

TRENDS IN AMERICANS’ POLICY PREFERENCES 341 (1992).181Page and Shapiro found that members of the public give great weight to experts’

statements in complex technical questions. Id. at 347.182For instance, Page and Shapiro wrote, “[A] series of studies relating the contents

of TV news reports to the magnitude and direction of changes in public opinion haveshown that news from various difference sources can, over time, cause changes in thepublic’s collective policy preferences.” Id. at 341.

183JESSICA LITMAN, DIGITAL COPYRIGHT: PROTECTING INTELLECTUAL PROPERTY ON THEINTERNET 18–19 (2001).

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used to be the only people “who really needed to know copyright law”184 that is drawn as “a complex, internally inconsistent, wordy, and ar-cane code.”185 Digital technology, however, has made copyright relevantto many members of the public including a teenager posting a parodyclip on YouTube, an amateur photographer publishing his photos onFlickr.com, and a lady finding and sharing lyrics of her favorite songson a Web site.

Furthermore, this study focuses on the mainstream news coveragebecause the public’s understanding of copyright law is closely relatedto social norms on copyright. Copyright law is at the heart of copy-right enforcement. However, norms developed around copyright, notjust copyright law, influence how copyrights are enforced. As Lessigdemonstrated in his book Code and Other Laws of Cyberspace, norm isone of the four modes that regulate someone’s behavior.186 Also, Gold-stein suggested that copyright law would not require “such regulatoryexcesses as those embodied in the DMCA”187 if copyright in the twenty-first century is to establish “its principles of restraint and permissionas a norm that is as effective as the norms of real property.”188 Whethertwenty-first century copyright norms should be formed based upon prin-ciples of freedom or of permission is a matter of disagreement, but whatseems to be in agreement is that copyright’s norms affect the extent towhich copyright users abide by or ignore rules of the law.

Against this background, this study addresses the following two re-search questions: First, which vision has been more dominantly coveredby mainstream news media in recent years? Second, has there been anychange over time within the time frame examined in this study?

METHODOLOGY

To address the research questions, a quantitative content analysiswas employed to examine AP wire service stories on the issue of copy-right published from January 1, 2004, through March 31, 2009.

News Source

AP wire service stories were chosen because the AP can be a valid in-dicator of the national news environment. Owned by 1,500 daily news-papers, AP is the largest and oldest news organization in the world

184Id. at 19.185Id.186LESSIG, supra note 25, at 87.187GOLDSETIN, supra note 31, at 214.188Id.

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and provides written articles and broadcast material to thousands ofnews organizations and Web sites that pay to use them.189 In addition,other scholars have examined how U.S. media covered a certain issueby studying the AP coverage of the issue as a representative sample.190

Although there are limitations of relying upon only one news source, theAP is more likely to be representative of both print and electronic mediathan any other news source. A shortcoming of analyzing the AP cover-age may come from the fact that the AP has been vigorously seekingto protect copyright over its materials.191 However, it is also unknownwhether AP’s strong stance in the cases involving AP materials resultedin affecting individual AP reporters when they worked on copyrightstories.

Keyword Search and Search Period

AP stories on the issue of copyright were retrieved from the Lexis-Nexis Academic: News database through a keyword search (“copyright”)in the Headline, Lead Paragraphs & Indexing database. The keywordsearch was limited to the Headline, Lead Paragraphs, & Indexing partof each story instead of an entire story, for all stories contained the word“copyright” in the copyright notice attached at the end of each and ev-ery story. The search period was from January 1, 2004192 to March 31,2009.193

Coding Process and Intercoder Reliability

A total of 2,233 stories were retrieved. Two coders first reviewed thestories for relevance. In deciding if a story was relevant, coders applied

189Associated Press, About Us: Facts & Figures, at http://www.ap.org/pages/about/about.html (Apr. 16, 2007); Saul Hansell, The Associated Press to Set Guidelines forUsing Its Articles in Blogs, N.Y. TIMES, June 16, 2008, available at http://www.nytimes.com/2008/06/16/business/media/16ap.html.

190See, e.g., DAVID P. FAN, PREDICTIONS OF PUBLIC OPINION FROM THE MASS MEDIA(1988); David P. Fan & Gregory McAvoy, Prediction of Public Opinion on the Spread ofAIDS: Introduction of New Computer Methodologies, 26 J. OF SEX RESEARCH 159 (1989);David P. Fan & Albert R. Tims, The Impact of News Media on Public Opinion: AmericanPresidential Election 1987–1988, 1 INT’L J. OF PUBLIC OPINION RESEARCH 151 (1989).

191The recent litigation over the Obama HOPE poster is an example. See DaveItzkoff, Associated Press Files Countersuit Over Obama Poster, N.Y. TIMES, Mar. 11,2009, available at http://artsbeat.blogs.nytimes.com/2009/03/11/associated-press-files-countersuit-over-obama-poster/?hp.

192The search period began at 2004 because the study focused on the news coverage inthe most recent years. Also, the most recent Supreme Court case in the area of copyright,MGM Studios, Inc. v. Grokster, 545 U.S. 913 (2005), was a reversal of the Ninth Circuitcourt’s decision involving peer-to-peer file-sharing software in 2004, MGM Studios, Inc.v. Grokster, 380 F.3d 1154 (9th Cir. Cal., 2004).

193The search period was ended, not for a substantive reason but for a practical reason:The coding began in early April 2009.

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specific criteria. First, they were directed not to include other intellec-tual property stories such as stories on trademark and patent. Second,they were advised to consider a story irrelevant when the primary fo-cus of the story was not the issue of copyright. Furthermore, coderswere instructed to consider a story irrelevant if it was a repetition of anearlier story within the same day. The repetition appeared because theAP sometimes sent out multiple versions of the same story with slightvariations within the same day. In such cases, coders were advised tocode the first story and then consider the subsequent, repetitive storiesirrelevant unless the subsequent stories were different from the firststory in more than one paragraph. Coders found 1,082 stories relevant.

Once finding a story relevant, coders checked its primary topic. Ifcoders decided the primary story topic was international copyright, theystopped coding after checking the region covered in the story. For rel-evant and domestic stories, coders examined the following variables:(1) Copyrighted Material at Issue, (2) Number of Sources AdvocatingCopyright Holders’ Position, (3) Number of Sources Advocating Copy-right Users’ Position, and (4) Number of Neutral Sources.

In determining the number of sources, coders were first instructed todetermine if a person or an organization, was a source that gives infor-mation to news reporters.194 Then coders counted the number of sourcesadvocating copyright holders’ position, the number of sources advocat-ing copyright users’ position, and the number of neutral sources. The ex-amples of sources advocating copyright holders’ position include lawyersrepresenting copyright holders, and spokespersons for the Recording In-dustry Association of America (RIAA), the Motion Picture Associationof America (MPAA) and similar advocacy organizations. The examplesof sources advocating copyright users’ position include lawyers repre-senting those who were sued for copyright infringement, users whoposted user-generated content online, and spokespersons for the Elec-tronic Frontier Foundation (EFF) and similar advocacy organizations.Finally, a source was considered neutral when the source provided the

194For determining news sources, coders were given the following additional instruc-tions that are directly taken from a book on quantitative content analysis:

Sources are explicitly identified as such when news reporters quote or paraphrase infor-mation from them in stories. The means by which reporters publicly credit a source forstory information is called attribution. Such attribution is signaled when a person or or-ganization’s name is linked in a story sentence with verbs denoting a person speaking,such as “said,” “claimed,” and so forth. Attribution also may be made by verbs denoting asource’s state of mind, such as “thinks,” “feels,” “wants,” et cetera. Story information notclearly attributed to a source is assumed to originate from a reporter’s direct observationsof actions and events.

DANIEL RIFFE, STEPHEN LACY, & FREDERICK G. FICO, ANALYZING MEDIA MESSAGES:USING QUANTITATIVE CONTENT ANALYSIS IN RESEARCH 131 (2005).

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reporter with the information endorsing both sides or with the informa-tion advocating neither side.

The intercoder reliability reached a satisfactory level after coderswere trained through four training sessions, coding 239 stories (about11% of the sampled news stories). The values of the intercoder reliabil-ity for the Relevance variable, for the Primary Story Topic variable, forthe Copyrighted Material at Issue variable, measured through Cohen’skappa, were .783, .746, and .809, respectively. The values of the inter-coder reliability for three variables related to the number of sources,measured through Pearson’s r, were .720, .720, and .716, respectively.In summary, all variables had the value of intercoder reliability no lessthan .70, an adequate level when Cohen’s kappa and Pearson’s r areused.195

Language Usage: Word Counts

The language used in the stories was examined following specificsteps. First, a list of words or phrases associated with two visions wascompiled. A list of words or phrases describing copyright holders’ rights(hereinafter H rights words or phrases) contained “infringement,” “ex-clusive right(s),” “compensation,” “violation of copyright,” “without per-mission” and “copyright protection.” A list of words or phrases describ-ing copyright users’ rights (hereinafter U rights words or phrases) con-sisted of “fair use,” “public domain,” “transformative/transformation,”“First Amendment,” “free speech,” “free press” and “free expression.” Inaddition, a search for “freedom to” was conducted to see if there werevariations in expressing the following concepts: freedom of speech, free-dom of the press, freedom of expression, freedom to read, freedom to usecopyrighted material, and freedom to enjoy copyrighted material.

Then, through a word processing software and its features of word-or phrase-finding and replacing operations,196 words or phrases listedabove were located in stories. Once a word or phrase was found, thecontext in which the word or phrase was used was also examined. Thecontext was taken into consideration because the listed words or phrasescan be used by both sides of a dispute. Therefore, what was counted wasnot the mere number of times certain words or phrases appeared innews stories, but the number of times that those words or phrases wereused to support a particular position. In other words, the number oftimes copyright holders used the H rights words or phrases to support

195See GEORGE ARTHUR MORGAN, SPSS FOR INTRODUCTORY STATISTICS: USE AND IN-TERPRETATION 109 (2004).

196See KALUS KRIPPENDORFF, CONTENT ANALYSIS: AN INTRODUCTION TO ITS METHOD-OLOGY 14 (2004).

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their rights and the number of times copyright users used the U rightswords or phrases to support their rights were counted.

Limitations of Quantitative Content AnalysisUsed in This Study

Quantitative content analysis employed in this study has two limi-tations. The first limitation is intrinsic in any study of content analy-sis: content analysis itself can only describe what is present (messagecharacteristics and relationships among message characteristics, for ex-ample).197 Content analysis alone cannot serve as the basis for makingstatements about the underlying motives for such message character-istics nor the effects of content on an audience.198 Thus, this study isdesigned to answer “what,” but not “why.”

Second, the findings of the study are limited to the framework of thecategories and the definitions used in the study.199 Though this is alsoanother intrinsic limitation of content analysis,200 other researchersmay disagree with the way this study measured the representation ofeach vision. Admittedly, sources advocating the copyright holders’ posi-tions are not the same as sources advocating the private property vision,and sources advocating the copyright users’ position are not the same assources advocating the public policy vision. Similarly, the usages of theH rights words or phrases are not the same as expressing the privateproperty vision, and the usages of the U rights words or phrases are notthe same as expressing the public policy vision. However, due to the factthat most AP stories examined were not in-depth articles exploring theorigin or economics of copyright or the production of copyrighted work,it was impossible to quantify the representation of the two visions interms of the three points in which the visions differ. Instead, the studyposits that sources advocating the copyright holders’ positions are morelikely to endorse the private property vision and to use the H rightswords or phrases to support the private property vision. Likewise, it isassumed that sources advocating the copyright users’ position are morelikely to endorse the public policy vision and to use the U rights wordsor phrases to represent the public policy vision.

197See KIMBERLEY A. NEUENDORF, THE CONTENT ANALYSIS GUIDEBOOK 53 (2002).198See ROGER D. WIMMER & JOSEPH R. DOMINICK, MASS MEIA RESEARCH: AN INTRO-

DUCTION 153 (2006).199Id. at 154.200Mass media scholars Roger D. Wimmer and Joseph R. Dominick explained as follows:

“Different researchers may use varying definitions and category systems to measure asingle concept. In mass media research, this problem is most evident in studies oftelevised violence. Some researchers rule out comic or slapstick violence in their studies,whereas others consider it an important dimension.” Id.

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FINDINGS AND DISCUSSION

An examination of sources cited in the news stories and an explo-ration of language usage are most relevant to the research questionsof the study. First, which vision has been more dominantly covered bymainstream news media in recent years? Second, has there been anychange within the time frame examined in this study? Prior to the dis-cussion of the findings that directly address these research questions,however, an overview of general characteristics of the stories examinedmay prove useful in providing a context for examination.

The Characteristics of the Stories Examined

About 62% of the 1,082 relevant stories were domestic, meaning allmajor parties involved in the story were in the United States. The re-maining 38% were international stories. Table 1 shows the number ofdomestic and international stories over the years. (The year 2009 has asignificantly fewer number of stories because only the first three monthsof that year were included in this study). The years 2006 and 2007 hadthe most stories, and 2006 was the only year when more internationalstories were reported than domestic stories. The regional breakdownof the 414 international stories is: Europe 48.3%, China 25.6%, Asiaexcluding China 12.6%, Australia 5.3%, and other regions 8.2%.

By a great majority, most of the 668 domestic stories (80.4%) werecase scoreboard stories. That is, the stories reported on court decisions,settled cases, and arising legal disputes including announcements tosue. Legislation scoreboard stories and stories on the proliferation ofonline copyright infringement were 3.7% and 3.0%, respectively. The re-maining 12.9% were on various other topics. Copyright issues related toliterary works (books, newspaper articles, magazine articles, for exam-ple); audio works (music, Internet radio, for example); and audiovisual

Table 1Numbers of international and domestic stories on copyright, 2004–2009

Year

2004 2005 2006 2007 2008 2009∗

International stories 39 68 149 104 47 7Domestic stories 115 95 130 159 148 21Total 154 163 279 263 195 28

∗ For 2009, stories published during the first quarter were included in the analysis.

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Table 2Three most frequently reported on copyrighted material, 2004–2009

Year

2004 2005 2006 2007 2008 2009∗

Literary works 7.8% 18.9% 23.1% 10.7% 31.1% 33.3%Audio works 20.0% 24.2% 16.2% 37.7% 23.0% 28.6%Audiovisual works 25.2% 18.9% 27.7% 28.3% 12.2% 4.8%

∗ For 2009, stories published during the first quarter were included in the analysis.

works (TV programs, movies, for example) were most frequently re-ported. Table 2 shows the percentages of stories on these three types ofwork within a year and their changes over the years.

The Number of Sources Cited

Coders identified 1,745 sources. Seven hundred and forty-four sources(42.6%) advocated copyright holders’ position, 593 sources advocatedcopyright users’ position (34.0%), and 408 sources were neutral (23.4%).The differences clearly indicate that the news stories gave more weightto the side of copyright holders when the stories reported on conflictsbetween copyright holders and copyright users. The differences werefound statistically significant with the single sample chi-square test.When an equal weight was given to each source type under the assump-tion of random appearance of each source type, the p value was less than.000 (χ2 = 97.377, df = 2). Thus, it can be concluded that in terms ofnews source representation, the private property vision has been moredominant than the public policy vision.

A contingency table was constructed. Here, for a statistical signifi-cance test for the percentage differences across the years, the data from2009 were excluded because the 2009 data included only the first quar-ter of the year. Table 3 shows how the number of sources in each typechanged from 2004 through 2008. The percentage in each column wascalculated based upon the total number of sources in each year. Overthe five years, the percentage of sources advocating copyright holders’position — ranging from 39.1% to 48.9% — has been higher than thatof the other two types of sources. That means in each year sources forcopyright holders were more often cited than sources for copyright usersand also were more often citied than neutral sources.

Table 3, however, also reveals another interesting trend that providesa reason for proponents of the public policy vision to be optimistic aboutthe future. The percent of sources advocating copyright holders’ position

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Table 3Numbers of sources cited, 2004–2008: Source type by year crosstabulation

Year

Source Type 2004 2005 2006 2007 2008

Sources for Count (% within 133 124 148 177 140copyrightholders

the year) (48.9%) (46.3%) (39.6%) (41.7%) (39.1%)

Sources for Count (% within 81 89 118 155 135copyrightusers

the year) (29.8%) (33.2%) (31.6%) (36.6%) (37.7%)

Neutral sources Count (% within 58 55 108 92 83the year) (21.3%) (20.5%) (28.9%) (21.7%) (23.2%)

Total Count (% within 272 268 374 424 358the year) (100.0%) (100.0%) (100.0%) (100.0%) (100.0%)

(χ2 = 16.459, df = 8, p = .036).

has been decreasing while that of sources advocating copyright users’position has been on rise. In the year of 2008, for instance, 39.1% ofsources favored copyright holders while another 37.7% of sources fa-vored copyright users. The difference between sources advocating copy-right holders’ position and sources advocating copyright users’ positionwas 19.1% (48.9% minus 29.8%) in 2004 whereas that difference wasonly 1.4% (39.1% minus 37.7%) in 2008. These differences across theyears were found statistically significant at the .05 level (χ2 = 16.459,df = 8, p = .036).

The Number of Times Associative Wordsor phrases Appeared

For an exploration of language usage, the number of times the Hrights words/phrase were used to support the property vision and thenumber of times the U rights words or phrases were used to support thepublic policy vision were counted. Overall, the H rights words or phrasesappeared more often than the U rights words or phrases: 475 times(76.7%) compared to 144 times (23.3%). The difference suggests thatthe news stories as a whole contained more words supporting rights ofcopyright holders than words supporting rights of copyright users. Thesingle sample chi-square test was run to determine whether this differ-ence was statistically significant. This time, instead of an equal weightto each category (which would be the case if it were assumed that ev-erything is up to chance), a different weight was given to each categorybased upon the previous finding that more sources favored copyrightholders than copyright users. It would be fair to assume that sources

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Table 4Frequency of associative words/phrases, 2004–2008: word/phrase type by year

crosstabulation

Year

Word/Phrase Type 2004 2005 2006 2007 2008

H rights words Count 75 69 99 120 97or phrases (% within the

year)(78.1%) (75.0%) (78.0%) (80.5%) (74.0%)

U rights words Count 21 23 28 29 34or phrases (% within the

year)(21.9%) (25.0%) (22.0%) (19.5%) (26.0%)

Total Count 96 92 127 149 131(% within the

year)(100.0%) (100.0%) (100.0%) (100.0%) (100.0%)

(χ2 = 2.026, df = 4, p = .731).

advocating copyright holders’ position are likely to use the H rightswords or phrases while other sources advocating copyright users’ posi-tion are likely to use the U rights words or phrases. When this assump-tion is taken into consideration, a different weight needs to be givento each category in relation to the proportion of each type of sources.As described earlier, 42.6% of the sources advocated copyright holders’position, 34.0% were sources advocating copyright users’ position, andthe remaining 23.4% were neutral. As there was no known reason toassume neutral sources would have a bias toward using one category ofwords or the other, the value of 23.4% was split between the two sides,making H rights words or phrases 54.3% and U rights words or phrases45.7%. The single sample chi-square test confirmed that the differencebetween the appearance of H rights words or phrases and that of the Urights words or phrases was statistically significant at .05 level (χ2 =125.572, df = 2, p < .000).201 This finding also indicates that the privateproperty vision has been more predominantly represented in the newsstories.

Is there, however, any change over time? Table 4 shows the numberof times the associated words or phrases in each theme appeared innews stories published within each year. The percentage in each col-umn was calculated based upon the total number of both the H rightswords/phrase and the U rights words or phrases. Again, the data fromthe year of 2009 were excluded from the analysis.

201It was also found statistically significant when equal weight was given to all cate-gories (χ2 = 176.997, df = 2, p < .000).

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As Table 4 demonstrates, the percentage differences between the ap-pearance of the H words or phrases and that of the U words or phrasesvaried little across the years. In addition, the changes did not presentany clear pattern over time. The appearance of the U words or phraseswas highest in 2005 and 2008 and was lowest in 2007. Possibly becauseof the small variance in the percentage changes over time, the differ-ences across the years were found not statistically significant at the .05level (χ2 = 2.026, df = 4, p = .731).

CONCLUSIONS

As digital technology has thrust complexity upon copyright law, theconflict among copyright holders, technology innovators, and users ofcopyrighted material has reached a boiling point. Advocates of two com-peting visions on the fundamentals of copyright have advanced starklydifferent interpretations of copyright law. With the assumption that aprevailing vision is likely to shape the scope and extent of copyrightprotection in the present and the future, this study examined whichvision has been more dominantly covered by mainstream news mediaand if there has been any change over time.

The study suggests that the private property vision has been moreoften represented than the public policy vision in the AP news stories.Among 1,745 sources cited in the news stories, about 43% advocated thecopyright holders’ position and 34% advocated the copyright users’ posi-tion. The difference was statistically significant. In addition, the findingthat more sources favored copyright holders than copyright users wasconsistent throughout all years examined in the study.

The private property vision of copyright was more dominantly repre-sented than the public policy vision in the AP news stories, both in termsof source representation and in terms of language usage. Words sup-porting copyright holders’ rights appeared more frequently than thosesupporting copyright users’ rights: The H rights words or phrases ap-peared 475 times whereas the U rights words or phrases sources did144 times. This difference was statistically significant.

Overall, today’s prevailing vision of copyright — as it is representedin the AP news stories — is the private property vision. What are theimplications?

First, in light of Gandy’s information subsidy theory, it can be spec-ulated that proponents of the private property vision might have beenmore successful than proponents of the public policy vision in supplyinginformation to mainstream media. That is, the advocates of the privateproperty vision have been more successful in defining what is a problemwith digital copyright protection (rampant piracy, for example) and what

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needs to be done to resolve the problem (imposing heavy penalty on anact of copyright infringement, for example). For those who believe thatcopyright law is already overly protective of private interests of copy-right holders, this study’s findings should be a wake-up call. Thoughmeaningful, grass root efforts including the Creative Commons havedrawn some public support, more work seems to be needed. The freeculture movement may have been limited in scope — mainly appeal-ing to younger, technology-savvy online users. It may be a time for theproponents of the public policy vision to engage in the copyright debatemediated through mainstream media more vigorously.

Second, considering the critical role that mainstream media play ininforming the public of copyright law and policy, it is desirable that themainstream media coverage on copyright move toward a more balancedpoint where both sides of the debate have an equal chance to presenttheir views. It is hard to know — and this study was not designed toexplore — why the mainstream media coverage is skewed toward theinterests of copyright holders. What is clear, however, is that biasedmedia coverage can mislead the public. If mainstream media portray apicture of copyright protection that is overly protective of interests ofcopyright holders, members of the public who are not properly informedof their fair use rights may become hesitant to exercise (or even be afraidof exercising) those rights. Further, the public that is well-informed onboth sides of the issue is more empowered than the public that hearsone side more loudly. The well-informed public is more likely to respectthe rule of copyright law that protects the rights of copyright holderswhile recognizing the public’s right to use copyrighted material in areasonable manner.

The need for mainstream media to cover the issue of copyright in amore balanced way is even more critical because of the increased sig-nificance of the public’s understanding of copyright law and its relationto copyright norms. As noted earlier, digital technology has made copy-right law relevant to many members of the public who access, dissem-inate, publish or share the information over the Internet. This meansthe public’s First Amendment freedoms are also at stake when main-stream media’s coverage of copyright law is skewed in one direction.Even worse, restrictive copyright law and restrictive copyright normscan reinforce one another.

The late, renowned copyright and First Amendment scholar MelvilleNimmer called the copyright-free speech conflict a “largely ignored para-dox.”202 The paradox is no longer ignorable when copyright law is usedto burden speakers who are not commercial, institutional speakers but

202Melville B. Nimmer, Does Copyright Abridge the First Amendment Guarantees ofFree Speech and Press?, 17 UCLA L. Rev. 1180, 1181 (1970).

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a new breed of individual speakers who exercise their First Amendmentfreedom in the context of digital remix culture. To revise copyright lawfor the new era—that is, to revise copyright law in a way that the publiccan understand, respect, and abide by, there must be a more vibrantdiscussion on the fundamentals of copyright. And, mainstream mediamust facilitate the vibrant discussion by informing the public of differ-ent values that the two visions promote in regard to copyright.

Though this study’s overall conclusion is that the private propertyvision has been more often represented than the public policy vision inthe AP news stories on copyright, the study found another trend thatsuggests there may be a hope for the public policy advocates. In themost recent years, the proportion of sources favoring copyright users’position has been rising while that of sources favoring copyright holders’position has been decreasing. In 2007 and 2008, the differences betweenthe proportion of sources in favor of copyright users and that of sourcesin favor of copyright holders were within 5%. This change over time wasfound statistically significant.

While the study was not designed to explore why such a rise exists inthe most recent years, plausible explanations for the rise in the numberof sources favoring copyright users’ position are conjectured. First, therise might have resulted from the fact that proponents of the publicpolicy vision has been more active in the most recent years than theywere in the previous years in reaching out the mainstream media toshape information environment in their favor. Second and related, itmight have been because AP reporters have sought more sources infavor of copyright users’ position, for the free culture movement hasbecome more visible and has gained more support. Third, AP reporterscould have become more prone to seek for sources favoring copyrightusers’ position as the types of copyright cases litigated and heard by thecourt have become diversified over the years. Whatever the reason is,the rise in the number of sources favoring copyright users’ position inthe most recent years is a positive trend.

Lastly, a few suggestions for future studies are in order. First, it wouldbe beneficial for future researchers to examine the mainstream mediacoverage on copyright in an expanded scale. While AP stories can be avalid indicator of the national news environment, examining news sto-ries from various mainstream news outlets will be more representativeof the national news environment. Also, it will be meaningful to examinethe copyright debate as it happens in cyberspace. Next, while this studyfocused on the mainstream media coverage of copyright, it will alsomake a significant study to examine traditional legal sources such ascourt opinions and/or Congressional documents to find out which visionis more readily accepted by the judiciary and/or by the legislature.

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