Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

Google v. Oracle VIII: On Juries Deciding Fair Use

Soon after the pandemic forced the Supreme Court to delay proceedings in Google v. Oracle, it directed the parties to “file supplemental letter briefs addressing the appropriate standard of review” with respect to the Federal Circuit’s decision in 2018, concluding that no reasonable jury could find that Google’s copying to create Android was fair use. On August 7, both parties filed their letters in response to the Court’s inquiry.

This is a nuanced matter, and I will leave the civil procedure questions to the practicing attorneys and those who have a detailed record on the day-to-day proceedings in this decade-long case. But I was intrigued by the broader copyright law consideration underlying the Court’s review standard question because it is one I have often thought about myself:  is fair use best weighed by a jury, by a court, or by some appropriate combination of the two? 

As a general rule, we look to juries to consider disputed issues of fact and courts to weigh or apply principles of law, and any copyright expert will tell you that a fair use analysis is a mix of fact and law. But as we see in Google v. Oracle, there can be ample disagreement about the line between fact and law that exists in a given fair use consideration.

As a simple example, consider factor three of the four-prong test—the amount and substantiality of the portion of the work used. A jury can reasonably arrive at a factual finding as to how much of a copyrighted work has been used. But the same jury may struggle somewhat with how much weight to give these facts with respect to the overall, four-factor, fair use analysis. Particularly because fair use is judge-made law, case law can be the most instructive guide, yet one which juries are not expected to know.

With that in mind, it is worth thinking about an argument presented by several legal scholars to the Supreme Court in defense of Google on this issue. They argued that the Federal Circuit’s failure to defer to the jury verdict on its ultimate conclusion of fair use was in error for three reasons. First, they argued it was unprecedented for a fair use finding by a jury to be overturned; second, they asserted that the court of appeals’ de novo standard for reviewing the matter was inconsistent with the Supreme Court’s standard; and third, they argued that the decision was an unconstitutional abridgement of the Seventh Amendment right to jury trial in civil litigation.

Is the “Exceptional Overruling” Truly Exceptional?

The first argument—that this was an unprecedented overturning of a fair use finding by a jury—may not carry much weight with the Court for the simple fact that jury decisions on fair use are not very common in the first place. Copyright cases involving fair use are typically decided on summary judgment, and fair use case law decisions encompasses a large anthology of discussion among judges that guides most fair use considerations before those questions get anywhere near a jury. [1] So, the supposed anomaly in Google v. Oracle, while it may be good for blog headlines, may not be as compelling a legal argument as it appears.

The Standard of Review: Are the Facts Really That “Complicated”?

The amici’s second argument—that the Federal Circuit erred when it engaged in de novo review—turns on that mix of law and fact bugaboo inherent to fair use analyses. When dealing with mixed questions of fact and law, the Supreme Court has stated that a court must decide whether the question tilts more toward fact or more toward law.  One reason for this is that when juries commit errors of factfinding, justice may not be served to the parties involved, but the law itself is not usually altered. Conversely, when errors of law are left intact without review, the law itself may be changed substantially, causing problems far beyond the specific case. Or as the Federal Circuit stated, in seeking to harmonize its standard with the Supreme Court’s opinion in U.S. Bank Nat’l Ass’n v. Vill. at Lakeridge, LLC (2018): 

Where applying the law to the historical facts “involves developing auxiliary legal principles of use in other cases—appellate courts should typically review a decision de novo. But where the mixed question requires immersion in case-specific factual issues that are so narrow as to “utterly resist generalization,” the mixed question review is to be deferential. [Citations omitted]

The Federal Circuit opinion devotes considerable time in its opinion explaining its approach before finding that de novo review was justified.  Nevertheless, amici for Google assert that the fair use analysis in this case is more factual than it is legal, tilting toward deference to the jury. Their basis for this is that, “the facts [in this case] are undeniably complicated.”

But are the facts in Google v. Oracle terribly complicated?  For instance, the Federal Circuit only highlighted eight facts it found to be relevant to the fair use analysis, including the finding on which the parties agreed that Google “copied material for the same purpose as in the original work” by using Java’s declaring code in Android. Even though that undisputed fact resolves the vast majority of the first prong of the fair use test, Google’s primary appeal to fair use is that its use of the Java packages to build Android —was “transformative” on the grounds that the work was used “in a new context.”

Here, the Federal Circuit correctly found this defense to be based on errors in both fact and law. Though I am admittedly jumping past the standard of review question, the record does not support Google’s claim of fair use. It deployed Oracle’s code for the same purpose in a small computer (a mobile device) instead of a large computer (a PC), which answers a question of fact; and even if this had been a new use, courts have largely held that “use in a new context” does not necessarily support a finding of “transformativeness,” which answers a question of law.

More generally, it is worth noting that “transformativeness” is one of the most vexing doctrines in the fair user’s handbook; it has confounded judges in district courts, sparked heated debate among legal scholars, and split circuits across the country. Very recently, in Brammer v. Violent Hues (2019), the Fourth Circuit held that a “…difference in purpose is not quite the same thing as transformation.” So, assessing “transformativeness” sounds an awful lot like a question of law amenable to review. As the Federal Circuit states in its opinion on this question:

… Google’s use of the API packages is not transformative as a matter of law because: (1) it does not fit within the uses listed in the preamble to § 107 ; (2) the purpose of the API packages in Android is the same as the purpose of the packages in the Java platform; (3) Google made no alteration to the expressive content or message of the copyrighted material; and (4) smartphones were not a new context.

Google characterizes the Federal Circuit’s holding as merely a challenge to “the sufficiency of the evidence,” based on its conclusion that “no reasonable jury could find that Google’s verbatim and entirely commercial use of the declaring code and SSO to compete against the Java platform was a fair use.’” (Citation omitted). Again, I will let the civil procedure question go, but note that to this layman, who probably knows fair use better than the average juror, that all reads as a mix of at least equal parts fact and law. “Verbatim,” “commercial,” and “potential” threat to the market are all bright yellow flags tilting against a finding of fair use as a matter of law. 

In fact, this is a pretty good example of what I referred to above as the distinction between juries and courts in fair use cases. Neither “verbatim” copying nor “commercial” use are disputed facts in this case. Yet a jury, even understanding these facts with little difficulty, can still err in apportioning weight to these factors in the overall fair use analysis. Hence review seems more than justified.

It is also notable that at least two of those subjects—“potential market” and “commercial use”– are frequently confused by the general public, and occasionally misapplied by district courts, as it was in Brammer. So, can a jury get these legal considerations wrong? I believe they can. Or as the letter for Oracle succinctly states, “A ‘primarily legal’ mixed question that is reviewed on appeal de novo does not somehow become a ‘factual’ one reviewed deferentially just because the factfinder was a jury rather than a judge.

What Does History and the Seventh Amendment Say?

Keep in mind that the procedural question at issue here is not whether the Federal Circuit erred in its holding that Google’s use of Oracle’s code was not a fair use (SCOTUS should rule on that question in the end), but only whether the appellate court applied the correct standard of review to the jury’s fair use finding , “including but not limited to any implications of the Seventh Amendment.”

To this, amici for Google present a final historical argument in order to draw two intertwined conclusions: 1) fair use in general is highly amenable to consideration by juries; and 2) evidence of fair use jury verdicts in eighteenth century English case law, establishes a jury right in the common law at the time of ratification of the Seventh Amendment.  

Citing two cases, Sayer v. Moore (1785) and Cary v. Kearsley (1802) amici for Google assert, “They represent common-law courts expressly recognizing that the jury should decide whether copyrighted material was used fairly by a defendant….History thus satisfies the constitutional test for whether to apply the Seventh Amendment to the issue of fair use.” These two cases are instructive, say the amici, because they entailed fair use questions presented to a jury. But according to a recent paper by Justin Hughes of Loyola Law School on this topic, those cases were not fair use cases—at least not cases consistent with the modern, American fair use doctrine. Hughes explains:[2]

As much as there are antecedents in these cases to our own thinking about copyright, there was also much going on that reflects concerns incongruent with today’s range of copyrighted works and ideas incompatible with our current themes.

In Sayer, for instance, Hughes observes that the jury charge contained prototypical elements of the idea/expression dichotomy more than facts relevant to a contemporary fair use consideration. And in Cary, Hughes agrees with New Zealand legal scholar Alexandra Sims who writes, “[Cary] represents the beginning of a judicial recognition of fairness in relation to the use of factual materials in the creation of new works, but not fairness in the sense of using material for the purpose of review and criticism or even quotation.” 

On that note, I will presume to interject here that it is a shaky proposal at best to imply that our modern concept of fair use was a living principle at the founding period, let alone one that was so well ingrained in England’s common law that one might hope to demonstrate that it was always viewed as a question of fact to go before a jury. I have not personally traced the fair use pedigree, but I have traced other copyright principles back a few centuries, and I would propose that the ways in which the Americans split with England are often more instructive to jurisprudence than the ways in which some historians identify precedent in the raw ingredients of a bygone world.

Perhaps most significantly, it is a unique feature of American copyright that fair use was, in part, codified so that copyright’s limitations would conform to our speech and press rights. And this is one area in which English and American copyright diverge significantly, especially when we travel back through the nineteenth and eighteenth centuries. For instance, English copyright law did not wholly shed its ties to anachronistic licensing acts (i.e. state authority to publish) until the mid-twentieth century. So, it is quite a stretch to assert that when English judges in 1785 and 1802 gave their jury instructions in Sayer and Carey respectively, they were asking those juries to weigh anything that truly resembles American fair use doctrine in the twenty-first century.

“The only analog Google’s amici have cited is the ancient doctrine of ‘fair abridgment,’ states Oracle. “Fair abridgment categorically excused a historical practice of shortening a longer work enough to ‘be called a new [work].” And this is not even always true under our fair use doctrine. Fair use, as we know it, simply did not exist in 1791 at the ratification of the Bill of Rights. Still, the controlling part of the Seventh Amendment is the clause that says, “…and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.”

This prohibition on reexamination is precisely why Google and its amici hope to emphasize the factual nature of fair use considerations and endeavor to straighten the historical line between England’s Lord Mansfield in Sayer, and America’s Justice Story, who became the judicial father of fair use when he presided over the case Folsom v. Marsh (1841). Citing Story in a subsequent case, Emerson v. Davies, amici for Google emphasize that Justice Story “described fair use as a ‘question of fact to come to a jury’ in 1845.”

But Professor Hughes asserts, quite reasonably, that Justice Story said nothing of the kind—at least not as a bright line rule that implicates a standard of review. Instead, Hughes elucidates:

Story is just quoting Mansfield in Sayer—and what Mansfield said in Sayer wasn’t specifically about fair use to begin with. Nowhere in Emerson v. Davies does Story say he himself believes that the test he set out in Folsom was a ‘question of fact to come to a jury.’

In fact, with respect to the standard of review, even if there were not a meaningful ideological divergence between England and the U.S., Hughes declares unequivocally:

Legal historians have yet to find any ruling or statement that a copyright infringement defendant in a court of equity had the right to remove the case to a court of law or to have any elements of the infringement action decided by a jury sitting in one of those courts of law.

Are Copyright Critics Begging for Uncertainty in Fair Use?

Finally, it should not go unnoticed that many of the same advocates for deference to the jury in Google v. Oracle share ideological kinship with some of copyright’s most ardent critics, who often write in papers, blogs, and social media comments that copyright is unjust because of its uncertainties. More specifically, asking for legal certainty in the software market is an explicitly stated goal by several of the amici who have filed on behalf of Google in this case. But it is hard to see this deference to the jury argument as anything other than a departure from that view, or as anything other than an argument of convenience in the moment. After all, if fair use considerations, already a complicated matter, are best left to juries without judicial review, it can only add uncertainty with implications for copyright law that go well beyond the short-term exigencies of software companies.  Or as Hughes puts it:

… if one wants a fair use eco-system in which there are some areas of more objective ex ante rule-like norms exempting certain reasonably defined categories of behavior from copyright liability – if one believes (as Justice Kennedy clearly did) that much of the conduct exempted by § 107 fair use is “amenable to regulation by rule” — one is likely to prefer de novo review as a means to clarify what is and is fair use.

On a very broad level, Google’s letter argues that a jury “properly decides fair use because it is well suited, from both a practical and a policy perspective, to determine how a ‘reasonable’ party would assess the defendant’s conduct.” And right there is where I return to my personal musings on this question and find that this “reasonableness” standard (i.e. a jury’s gut feel) is inherently disconcerting. I have consistently seen users of works and owners of works reveal a general misunderstanding of fair use. So, I believe Oracle’s letter is more on the money when it states that “fair use does not ask what feels fair to an ordinary person.” Instead, it “applies judge-made factors codified in the Copyright Act and elucidated by additional legal rules developed in a vast body of fair use precedent.”

[1] An analysis of district court opinions between 1978-2005 found that “more than half of the opinions addressed a motion or cross-motion for summary judgment, and of these 121 opinions, 86% granted the motion or one of the cross-motions. This supports the conventional wisdom that courts regularly resolve fair use issues at the summary judgment stage.”  Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005, University of Pennsylvania Law Review, Vol. 156, No. 3.

[2] Justin Hughes. “The Respective Role of Judges and Juries in Fair Use Determinations.” Loyola Law School. Legal Studies Paper No. 2020-09

Online Piracy More Sophisticated and Insidious Than Ever

I haven’t written about enterprise scale piracy in a while. Not because it’s gone anywhere. Quite the contrary, it’s still growing. But it is easy to feel as though all the major points have been covered, that there is nothing much new to say on the matter. Somewhere on this blog, there is at least a post or two responding to just about every rationalization for piracy, and there seems to be little value in repeating most of that. But a new report released by Digital Citizens Alliance, in collaboration with NAGRA Kudelski, does reveal a couple of new topics that deserve the attention of consumers, law enforcement, and policymakers.

The report titled Money for Nothing focuses on the multi-billion-dollar trade in illegal Internet Protocol Television Services (PS IPTV) that DCA currently estimates to be worth at least one billion dollars annually from U. S. operations alone. In a nutshell, the consumer sees an ad, often on a social media site, that offers hundreds, or even thousands, of channels for an inexplicably low subscription fee. The customer buys a black box similar to a cable converter that is typically preloaded with firmware that will stream material (both live TV and recorded motion picture content) that is illegally obtained worldwide through a vast network of pirate server operators.

On the one hand, a consumer who takes an offer to access that much material for $10-$15 a month ought to know something ain’t right; but at the same time, I think about the number of senior citizens who so often fall prey to what would seem like obvious scams. And given the dramatic ways in which TV viewing has changed in last decade or so, it is plausible that many a Boomer might believe these services are legitimate. After all, these illegal services look very slick, with on-screen user interfaces that work just like legit services. And isn’t piracy about free access?

“Because subscribers are paying someone for the content, and because the storefront websites and apps are often well designed, and posing as legitimate, some consumers may believe they are using a legal service.“

The DCA/NAGRA report estimates that there are about nine million American households currently subscribing to pirate IPTV services, and this is a significant number relative to subscription TV overall. In 2013, there were an about 100 million households subscribing to pay TV, today that number is about 86 million, and it is predicted that by 2023, this number will drop to around 73 million subscribers.[1] Those stats measure traditional paid “cable” services and do not reflect how many households have “cut the cord” but also switched to other paid services like Netflix, Hulu, Amazon Prime, etc.

For instance, Netflix enjoys 167 million U.S. subscribers, and most customers subscribe to more than one of these services, suggesting that willingness to pay for TV and film entertainment is still fairly healthy overall. At the same time, however, nine million pirate IPTV users in a dynamic market is a number to keep an eye on, and it would be useful to have some insight into both the motives and the general understanding among these subscribers. Are they belligerent and still rationalizing piracy? Are they naïve and don’t know that they’re subscribing to criminal organizations? Are they viewers who “cut the cord” but simply want cheap access to TV channels, etc. in addition to the major streaming services?

Whatever the motives or attitudes may be for subscribing to these services, both consumers and law enforcement should be aware that, in addition to harming legitimate production and distribution models, pirate IPTV providers are one part of a whole smorgasbord of online criminal activity. As DCA has reported in the past, piracy sites are honeypots where a visitor has a roughly 30% chance of contracting malware that can be used for identity theft, ransom schemes, spying on households by controlling devices, or directly obtaining money, credit card numbers, or passwords.

Moreover, the new reports states, “NAGRA also found a scheme where the residential Internet connections of pirate IPTV customers are turned over to others – who could potentially use them for illegal activities, such as accessing child pornography, committing fraud, or participating in cyber attacks.” What that means is that the IP addresses of the subscriber base can be tasked as a distributed VPN used by criminals to hide their tracks while engaging in various illegal activities.

So, not only does a pirate IPTV subscription help support cybercrime, but subscribers themselves can wind up implicated if their IP addresses are used in connection with certain activity. So, it is not farfetched to think that paying $10/month for that all-access pass can result in a knock on the door by authorities wanting to question the subscriber about accessing child pornography or some other crime far worse than media piracy. And it cannot be a fun conversation to alibi a major crime by admitting to a lesser one.

 The Money for Nothing title derives from the fact that even the smallest players in the IPTV “industry” can generate substantial profit margins from relatively little investment—because of course they don’t bear the cost of licensing the material they distribute. One irony that’s hard to miss in this regard is that DCA describes a hierarchy of retailers buying distribution credits from wholesalers, which is fundamentally a licensing scheme, albeit for contraband material. Funny how permission is a constant, even among a network of thieves.

As consumers continue to change their viewing habits, and legitimate creators continue to adapt to the changing market, DCA and NAGRA are right to ask that policymakers track the development of these unlicensed IPTV services. Even if they were not directly antagonistic to legitimate distribution models (and they are), they remain intertwined with trafficking, extortion, child pornography, identity theft, and other forms of cybercrime. And nine million supporters of that activity is a lot more than too many.

[1] Source: Statista.

UPDATE: As originally published, I made too casual use of the term IPTV without the qualifier “pirate.” There are legal IPTV services. Thanks to Hugh Stephens for the note.

The Internet Industry Should Not Pick the Next Register of Copyrights

Even under normal circumstances, anyone can be forgiven for missing the memo that by the end of this month, the Librarian of Congress, Dr. Carla Hayden, will make her pick for the new Register of Copyrights. The process has been going for so long that I assume that at this stage Dr. Hayden has her choices down to a handful of candidates or fewer on the shortlist. And while I do not know who the candidates are or, therefore, anything about their views on copyright, I do know that there remains a substantial effort by well-funded parties to alter the foundational principles of American copyright law. And not in the interest of creators or society in general.

Ever since the internet revolution promised to “make the world a better place,” the aggressive headline adopted by copyright’s most prominent critics has been that “copyright is broken” and needs “rebalancing” in the digital age. Unfortunately, this egalitarian sounding notion has proven to be insidiously unbalanced, skewed toward the interests of major internet platforms to the continued detriment of authors of creative works. Especially independent authors.

By any sensible observation, the big internet companies are doing just fine, while creators’ rights are being trampled in cyberspace. So, if there is truly any rebalancing to be done, it cannot justifiably be a recalibration toward a more platform-friendly direction, as evangelized by many prominent academic and institutional copyright skeptics.

Technological Change is Nothing New to the USCO

But even if those market realities were not plainly observable, any suggestion that the next Register must be more adept than their predecessors at “balancing” new technologies with the rights of authors should be dismissed as ahistorical rhetoric. Balancing technological innovations with the rights of authors is not a novel core competency for the U.S. Copyright Office. From the moment the first Register was appointed in 1897, the newly created Office began immediately grappling with the technological inventions that were already transforming the nature of copyright in the late nineteenth century, and which were about to catalyze a wealth of diverse cultural expression in the twentieth century.

Register Thorvald Solberg, who was not even an attorney, was arguably the principal architect of the 1909 Copyright Act, the first truly modern (i.e. technologically savvy) copyright law, not only in the U.S., but possibly in the entire Anglo/American copyright lineage up to that time. As scholar Zvi S. Rosen notes on his Mostly IP History blog, Solberg diligently studied every extant and proposed copyright law in the United States between 1789 and 1904. At the same time, this deep dive into the purpose and nature of copyright was contemporaneous with rapidly changing technologies that were dramatically transforming the creation, distribution, and use of works of authorship.

Advances in printing methods, photography, phonographs, motion pictures, and player pianos all contributed to a technological revolution no less provocative at the threshold of the twentieth century than the arrival of the public internet and related digital technologies have been at the threshold of the twenty-first. But until the 1909 Act, prior revisions to American copyright law were somewhat ad hoc legislative tweaks that had yet to truly reckon with the changing nature of a law that originally protected maps, charts, and books.

For instance, when photography was added in 1865 and then challenged as a protectable medium almost twenty years later, arguably nobody in Congress had really considered the nature of authorship in this first mechanical means of creating images. Today, many of the themes from that seminal confrontation with photography are repeated as we consider the implications of new machine-made works in an age of artificial intelligence. Thus, the contemporary technological landscape may be fresh ground for legal theorists, but it is not wholly uncharted territory. “The Register of Copyrights has long been tasked with dealing with the intersection of copyright law and technology,” Rosen commented to me by email. “In fact the 1909 Act’s adoption of technological neutrality – use of ‘all the writings of an author’ instead of an enumerated list of types of works – represented a recognition that the Register would be tasked with evaluating whether a new type of work was a writing of an author.”

Solberg’s historical analysis of the entire legislative history, including the thinking behind every proposal up to 1904, set the tone for what the role of the Register would become—not just a chief clerk managing registrations and deposit copies, but a thought leader helping to define the contours of copyright law in context to the dynamic ways in which works may be produced, used, and made available. The next Register should be someone who keeps faith with this tradition, and certainly not someone who sees the Copyright Office as a forum for radical revision of legal doctrine, under the misguided belief that the digital age asks unique questions rather than variations on familiar themes.

Changes in Distribution Methods Do Not Upend Copyright’s Principles

Although the most powerful internet and technology companies like to tell us that their platforms and apps “change everything,” we must remain mindful of the fact that many of these shiny new toys have actually been less revolutionary in a copyright context than the technological changes emerging during Solberg’s tenure. After all, most internet platforms are primarily just new methods of distribution (or in copyright terms “making available”) and this hardly recommends a holistic rethinking about copyright’s nature or purpose.

For example, Spotify and other music streaming platforms, while nearly obliterating both broadcast radio and recorded music, have in no way altered the nature of music making or the cultural value of music listening. But these companies have exploited pre-internet copyright regimes in order to direct most of the financial value in sound recordings into their coffers, while leaving most music creators a pauper’s stake in the all-digital market. So, just in regard to this one category of creative works, any suggestion that copyright needs “rebalancing” in favor of the internet giants is as immoral as it is economically untenable.

Claims of Imbalance at the USCO Have Been Greatly Exaggerated

Readers may remember (though it seems a trifling matter today) that when Dr. Hayden was first appointed Librarian in 2016, the anti-copyright crowd became positively giddy at the prospect that she was a crusader determined to fix everything they allege to be “broken” in copyright law. I wrote at that time that the Librarian has never been the de facto copyright expert in the United States—not when Librarian Ainsworth Spofford first consolidated registration under the control of the Library in 1870, and not when the Register position was first created in 1897.

That same misguided anticipation of Dr. Hayden as presumptive copyright “reformer” practically effervesced when then Register Maria Pallante was rather suddenly, and mysteriously, dismissed; and this was because Pallante had become the focal point for copyright critics endeavoring to accuse the Office of being “culturally captured” by major rights holders. But even a peek under the surface of those claims suggests that anyone in the Register’s position who was (heaven forbid) a proponent of copyright, would have been likewise accused.

For example, in contrast to many shrill accusations of cultural capture and bias in the DMCA Section 1201 Triennial Rulemaking, I would challenge anyone to read the reports and show how the USCO has failed to largely favor petitioners seeking reasonable exceptions under those provisions. Or one could look to the USCO brief in the Fourth Estate case (2019), siding with tech industry and library amici on an important procedural question of registration. The list goes on, but the point is that we are justified in asking whether certain parties really want a “more balanced” Register or want a Register who is ideologically hostile toward copyright?

That question may be rhetorical, but it is no exaggeration. It alludes to a longstanding and still simmering debate in copyright history. Those who view copyright as a necessary evil—as a mere privilege granted to authors in order to get what society wants from them—naturally approach the law quite differently from those who view copyright as a matter of justice, a natural right of creators, but one with certain limits. The truth is—and public opinion supports this all the time—copyright is a bit of both. Most people, even if they are not versed in the law, consistently show that they discern both the inherent justice of authorial rights and the utilitarian nature of market incentives to produce and distribute works.

As I say, I do not know who the Register candidates are. But to the extent that Dr. Hayden seeks a fresh perspective in the current market, I hope she understands that where new legal thinking is needed, it should be to ask how we can better protect individual authors against massive, exploitative technology companies. And certainly not the other way around.

Photo of Minerva. Handy, Levin C, photographer. Congressional Library. Minerva. Washington D.C, ca. 1897. Photograph. https://www.loc.gov/item/2013646342/.