Property is a Two-Way Street: Personal Copyright Use and Implied Authorization

at least nothing radical in its respect for the property rights of copyright holders.250 First, authorization rights remain with the copyright holders. Requiring rights holders to take steps to ensure that their property not be used in an objectionable way is consistent with traditional property conceptions. Property law accords less protection to owners who fail to maintain control of their property. Property may be lost through adverse possession or abandonment,251 and others may gain use rights through implied or prescriptive easements or licenses that become irrevocable through reliance.252 And the requirement that property owners opt-out of 250. Once again assuming arguendo that copyrights are property. 251. But cf. Lior Jacob Strahilevitz, The Right to Abandon, 158 U. PA. L. REV. 355, 399 (2010) (observing that “[t]he conventional account holds that at common law, corporeal hereditaments like fee simple interests could not be abandoned but incorporeal interests (e.g., easements, mineral interests, and licenses) could” and criticizing common law hostility to abandonment of real property). 252. In discussing implied license in the patent context, Mark Janis points to cases in which the presence of waters on private property creates an implied license to navigate them until the owner remedies their presence. Janis, supra note 2, at 505 n.475; cf. Litman, Lawful Personal Use, supra note 6, at 1917 (observing that the “property law solution” to the “mess” of divisible copyright rights “is the easement by implication”). And outside the traditional property context, admiralty law provides salvors the right to demand compensation from owners of rescued property. 2 THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW § 16-1 (4th ed. 2004) (listing formal elements of a general maritime law salvage claim: “(1) there must be a marine peril placing the property at risk of loss, destruction, or deterioration; (2) the salvage service must be voluntarily rendered and not required by an existing duty or by special contract; and (3) the salvage efforts must be successful, in whole or in part”). 486 FORDHAM LAW REVIEW [Vol. 79 uses of their property is not alien to the world of real property.253 Similar principles should apply in intellectual property law.254 Copyright holders who choose not to publish or decide not to publish widely will naturally receive greater protection. But those who wish to reap the benefits of releasing their work into the wild must take the bitter with the sweet. Second, an objection focused on fairness to copyright holders must be specific about which copyright holders face unfair treatment. Many unauthorized or tolerated copyright uses benefit the copyright holder. So free distribution of an album may stimulate later demand.255 Fan communities that make use of copyrighted material may enhance the popularity of a work and create demand for sequels or other derivative works.256 But if fears of copyright enforcement deter such uses then authors who would benefit from them lose out from the assumption that nothing is permitted absent explicit consent. And that consent may be costly to give insofar as copyright holders face difficulty in precisely calibrating authorization so that it is understood without being seen as authorizing unacceptable works.257 Further, many copyright holders no longer wish to assert control over their works, but will not or cannot expend effort to communicate that signal, contributing to the “orphan work” problem. Because there is no one to authorize use, projects are unable to proceed for fear that a lawsuit might arise after investment, creating the risk 253. Tim Wu notes the example of requiring owners of rural property to post no trespassing notices for trespass liability to exist. Wu, supra note 210, at 621 (citing N.Y. ENVTL. CONSERV. LAW § 11-2115 (McKinney 2010)), 625; Mark R. Sigmon, Note, Hunting and Posting on Private Land in America, 54 DUKE L.J. 549, 558 (2004) (noting that “twentynine states require posting to exclude hunters” and collecting statutes). 254. A trademark is abandoned, for example, when “its use has been discontinued with intent not to resume such use” or “any course of conduct of the owner, including acts of omission as well as commission, causes the mark to become the generic name for the goods or services on or in connection with which it is used or otherwise to lose its significance as a mark.” 15 U.S.C. § 1127 (2006). Abandonment is a defense to an infringement claim. Id. § 1115(b)(2). Three years without use is prima facie evidence of abandonment. Id. § 1127. 255. As was famously the case for the Wilco album Yankee Hotel Foxtrot. Yankee Hotel Foxtrot, WIKIPEDIA, http://en.wikipedia.org/wiki/Yankee_Hotel_Foxtrot (last visited Oct. 23, 2010). 256. To take a recent example of the former, a wedding video set to the tune of Chris Brown’s song Forever became a viral hit online. Because YouTube employs content management tools to aid copyright holders in monetizing content, Brown’s label was able to sell the song directly to viewers watching the video. Sales of the single shot up as a result of the user-generated content. Chris La Rosa & Ali Sandler, I Now Pronounce You Monetized: A YouTube Video Case Study, THE OFFICIAL GOOGLE BLOG (July 30, 2009, 9:32 AM), http://googleblog.blogspot.com/2009/07/i-now-pronounce-you-monetized-youtube.html. The making of the movie Serenity, based on the short-lived science fiction series Firefly, is an example of fan culture stimulating further demand for copyrighted work. Jeff Jensen & Jeff Labrecque, “Serenity” How?, ENTM’T WEEKLY, Sept. 9, 2005, available at http://www.ew.com/ew/article/0,,1102753,00.html. 257. See Wu, supra note 210, at 628 (discussing potential efficiency of a copyright “No Action Policy” (internal quotation marks omitted)). 2010] PROPERTY IS A TWO-WAY STREET 487 of a holdup.258 In short, the fairness objection has to explain why one class of copyright holders is to be favored at the expense of others. D. Applications/Implications This section explores some of the implications of the above analysis by applying the implied authorization framework both to historic copyright debates and some modern issues. 1. Past Applications Looking back to the development of the first-sale doctrine and the pre1976 history of the performance right reveals that there is nothing remarkable about the focus on user property rights discussed above. More recent precedents involving Google’s search activities and the DMCA are in accord.