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private use had no defenders and received no explicit treatment in the revision conferences, therefore, had substantive results on the legality of private use under the revision bill.

The public, of course, does have a designated representative; acting as that representative is Congress' job description. A few Congressional committee staff members did attend some of the copyright conferences as observers, but stayed above the fray.211 The unspoken premise of the conference process was that Congress would enact any bill that everyone else could agree on. Ultimately, that is what Congress did.212

Much legislation advances the agendas of private interest groups. Indeed, contemporary interest group theory holds that many, if not most, statutes are purchased by special interests from legislators in return for political support.213 Copyright legislation produced through industry conferences nonetheless has some unusual features. Under the typical model, interest groups submit self-serving proposals, and members of Congress evaluate whether the value of supporting the proposals outweighs the political costs, necessarily passing judgment on the substantive content of the proposed legislation.214 The bargain between members of Congress and industry representatives in connection with copyright legislation was of a different sort: Congress in effect agreed that if the industry representatives would invest the time and energy to develop a bill that all of

gress, the privilege became narrower and more qualified. See S. 22, 94th Cong., 2d Sess. § 110(6) (1976), reprinted in H.R. 1476, 94th Cong., 2d Sess. 8 (1976); S. 22, 94th Cong., 1st Sess. § 110(6) (1975). Veterans' and fraternal organizations did not, for the most part, involve themselves in this dispute. But see 1967 Senate Hearings, supra, at 1361 (written comments from Troy Shrine Club supporting agricultural fair exemption). Shortly after the 1976 Act took effect, veterans' and fraternal organizations were dismayed to learn that the new Act made them liable for copyright infringement unless they negotiated licenses or ceased paying the bands that they hired to play at their charitable benefits. See generally To Amend The Copyright Act, S. 2082: Hearings on S. 2082 Before the Subcomm. on Improvements in Judicial Machinery of the Senate Judiciary Comm., 96th Cong., 2d Sess. 6–43 (1981) (various witnesses). Veterans' and fraternal organizations mounted a successful effort before Congress for the enactment of an exemption for charitable benefit performances by nonprofit veterans' or fraternal organizations. See Pub. L. No. 97-366, 96 Stat. 1759 (codified at 17 U.S.C. § 110(10) (1982 & Supp. IV 1986)).

211 See, e.g., CLR Part 2, supra note 6, at 44 (remarks of Cyril F. Brickfield, House Judiciary Committee).

212 See Litman, supra note 15, at 876-79 and sources cited therein.

213 See, e.g., Easterbrook, The Supreme Court 1983 Term-Forward: The Court and the Economic System, 98 Harv. L. Rev. 4, 15-18 (1984); Landes & Posner, supra note 8, at 877; Macey, supra note 8, at 227-33; Posner, supra note 8, at 265-68. 214 See, e.g.. Macey, supra note 8, at 232-33.

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them endorsed, Congress would refrain from exercising independent judgment on the substance of the legislation.215

The nature of this bargain introduces particular difficulties into the enterprise of statutory interpretation. As I have argued elsewhere, this type of drafting process makes it exceedingly difficult to speak of legislative intent if by legislative intent one means the substantive intent of members of Congress.2 216 But, even if one avoids that dilemma by ascribing to Congress an intent to enact the substance of the deals forged in conferences, one nonetheless may encounter difficulty in identifying any overall purpose pervading the text of the statute.217 The compromises that evolve through the conference process can be multilateral and interrelated, but may not incorporate any common vision or strategy.' Courts must apply this legislation to parties, works, and situations that never arose during the conference process, and to industries that could not be present. 219

218

In the 1976 Act's first decade, for example, courts struggled with cases involving videocassette recorders, 220 communications satellites,221 and on-line databases.222 The courts' efforts to apply the

215 See Litman, supra note 15, at 870-80; Olson, supra note 2, at 120. 216 See Litman, supra note 15, at 863-70.

217 See, e.g., Posner, Statutory Interpretation—In the Classroom and in the Courtroom, 50 U. CHI. L. Rev. 800, 819-20 (1983).

218 It would be exceedingly difficult, for example, to identify a coherent strategy animating the assorted provisions of the 1909 Act, see supra notes 141-59 and accompanying text, or any of the versions of the Vestal bill reported out of committee, see supra notes 116-18 and accompanying text. It is easier to discern a scheme underlying the provisions of the 1976 Act, see infra notes 230-60 and accompanying text, but the scheme that emerges seems to me to be neither workable nor wise. See infra notes 31315, 449-58 and accompanying text.

219 Courts have not, for the most part, attempted to detect an overarching strategy in the provisions of the 1976 Act. Many courts have relied on the plain meaning of the statutory language of whatever provisions are in dispute. See, e.g., Mills Music v. Snyder, 469 U.S. 153 (1985); Pacific & Southern Co. v. Satellite Broadcast Networks, 694 F. Supp. 1565 (N.D. Ga. 1988). Courts' use of the plain meaning rule arguably increases the influence of linguistic fortuity on the results. See infra notes 373-96 and accompanying text. Other courts have relied heavily on case law interpreting the 1909 Act. See cases cited in Litman, supra note 15, at 859-61, 896-901. Reversion to early case law has introduced additional randomness into courts' interpretations of the stat ute. See id. at 903. If courts were to interpret the statute with an eye to enforcing its underlying strategy, however, it seems likely that courts would hold many more activities than they have to be infringing. See infra notes 406-18 and accompanying text. As a result, the 1976 Act would age even more rapidly than it has thus far.

220 Universal City Studios v. Sony Corp. of Am., 480 F. Supp. 429 (C.D. Cal. 1979), aff'd in part, rev'd in part, 659 F.2d 963 (9th Cir. 1981), rev'd, 464 U.S. 417 (1984); see infra notes 406-16 and accompanying text.

221 See Hubbard Broadcasting v. Southern Satellite Systems, 777 F.2d 393 (8th Cir.

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[Vol. 68, 1989] statute in these cases have been widely criticized.223 The statutory language, however, gives courts little guidance. The fact-specific provisions of the statute do not contemplate such exotic creatures; 224 the paucity of provisions articulating more general principles has relegated courts to ad hoc decisionmaking. 225

Moreover, the complexity and specificity of multiparty compromises exacerbates the problem. If a compromise is negotiated between monolithic interests, between, for example, all artists and all art users, we can find roughly defined privies in the negotiating process for the interests that develop in the future. Applying a compromise negotiated among encyclopedia publishers, popular music composers, motion picture producers, novelists, and dramatists, however, to a situation involving the importers of unicorn figurines226 can be substantially more troublesome. This reveals the difficulty of jettisoning any effort to find coherence in such a statute and attempting to interpret it as if it were a contract.227 If the industry to which a court is trying to apply the statute was neither represented in negotiations nor in privity with someone who was there, it is difficult to assess how the metaphorical contract allocates the risks of ambiguity.

As it happens, however, the conferences that led to the 1976 Act did finally settle on a common strategy and did allocate the risks of

1985), cert. denied, 479 U.S. 1005 (1986); Eastern Microwave v. Doubleday Sports, 691 F.2d 125 (2d Cir. 1982), cert. denied, 459 U.S. 1226 (1983); infra notes 376-96 and accompanying text.

222 See. e.g.. West Publishing v. Mead Data Cent., 799 F.2d 1219 (8th Cir. 1986), cert. denied, 479 U.S. 1070 (1987).

223 See, e.g., Adelstein & Perez. The Competition of Technologies in Markets for Ideas: Copyright and Fair Use in Evolutionary Perspective, 5 INT'L REV. OF L. & Econ. 209 (1985); Kost, supra note 4, at 24-25; Oman, The 1976 Copyright Revision Revisited: "Lector, si monumentum requiris, circumspice," 34 J. Copyright Soc'y 29, 32, 35 (1986); Patterson, Free Speech. Copyright and Fair Use, 40 VAND. L. Rev. 1, 53-58 (1987).

224 The fact that the statute fails to make explicit provision for video cassette recorders and communications satellites highlights how very shortsighted the negotiation process has tended to be. Both were foreseeable developments at the time of the drafting process, but had not yet posed concrete problems for affected industries, and consequently received no attention.

225 See infra notes 341-416 and accompanying text.

226 See Comment, Commissioned Works as Works Made for Hire Under the 1976 Copyright Act: Misinterpretation and Injustice, 135 U. PA. L. Rev. 1281 (1987) (discussing Aldon Accessories v. Spiegel, Inc., 738 F.2d 548 (2d Cir.), cert. denied, 469 U.S. 982 (1984)).

227 Some commentators have suggested that special interest legislation should be interpreted and enforced as if it were a contract between interest groups and the legislature or among interest groups. See, e.g.. Easterbrook, supra note 213, at 18.

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ambiguity. Indeed, industry representatives explained the strategy to Congress in unusually explicit terms. The bills that became the 1976 Act possessed a coherence that previous revision legislation lacked, although that coherence emerged as a byproduct of the efforts to achieve inter-industry consensus. Register Kaminstein suggested early on that the key to general revision would be to draft a copyright bill that benefited each of the competing interests. 228 In that, the conferences succeeded. The bill that emerged from the conferences enlarged the copyright pie and divided its pieces among conference participants so that no leftovers remained. 229

C. Broad Rights and Narrow Exceptions

In 1961, two months after Register Kaminstein filed the controversial Register's Report, he convened a meeting of an augmented panel to discuss copyright revision. Kaminstein invited the original twenty-nine panelists, chairmen of bar association committees, delegations from a dozen federal agencies and departments, and representatives of several interests that had until then been excluded.2. Kaminstein announced that the purpose of the meeting was for the assembled government and industry representatives to use the recommendations made in the Register's Report as the foundation for the development of inter-industry consensus.231 The meeting was the first of a series; the series of meetings spawned further series of meetings; with each meeting the number of interests represented on the panel increased. 232 Between panel meetings, the panelists met with one another in search of compromises, and the Copyright Office urged further meetings and negotiations among affected interests. 233 During the many meetings, the Copyright Office and

228 See REGISTer's 1961 RepORT, supra note 196, at 71.

229 This interpretation of the bill is not explicitly reflected on the face of the statute, or in the House and Senate Committee Reports. The evolution of the language of the bill through the process of negotiations, however, reveals broadening rights, narrowing exceptions, and redrafting of statutory language to close perceived loopholes open to future exploitation. The negotiation process encouraged each subsequent draft to treat absent interests less generously than its predecessor. See infra notes 230-312 and accompanying text.

230 See CLR PART 2, supra note 6, at 1-4. Two congressional staffers also attended as observers. See id.

231 See id. at 4-5; see also id. at 4 (remarks of Rutherford D. Rogers, Chief Assistant Librarian of Congress) ("We are in the unenviable position of being the middle man here trying to reconcile the interests of special groups as well as the public interest."). 232 Compare, e.g., id. at 55-56 with CLR PART 5, supra note 205, at 33-36. 233 See 1975 House Hearings, supra note 204, at 93-94 (testimony of Abraham Kaminstein, Former Register of Copyrights); Copyright Law Revision: Hearings on H.R.

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(Vol. 68, 1989] industry representatives hammered out the substance of a revision bill. 234

In the 1961 Register's Report, the Copyright Office suggested only modest changes in the law: the codification of courts' solutions. to assorted copyright problems, the clarification and simplification of language, and the removal of some anomalies created by technological change or historical accident.235 Meetings with representatives of affected interests, however, produced proposals to broaden rights 236 and narrow exemptions and privileges.237 Suggestions for broad or general privileges evolved through negotiations to very specific ones. 238

4347 Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Comm. on the Judiciary, 89th Cong., 1st Sess. 31-32 (1965) (hereinafter 1965 House Hearings) (prepared testimony of George Cary, Deputy Register of Copyrights); id. at 994 (prepared testimony of Motion Picture Ass'n of America); 113 CONG. REC. 8586 (1967) (remarks of Rep. Pom.

234 See, e.g.. Copyright Law Revision: Hearings on S. 1006 Before the Subcomm. on Patents Trademarks and Copyrights of the Senate Comm. on the Judiciary, 89th Cong.. Ist Sess. 64 (1965) (Hereinafter 1965 Senate Hearings) (testimony of Abraham Kaminstein, Register of Copyrights).

235 See CLR PART 1, supra note 196; CLR Part 2, supra note 6, at 19 (remarks of George Cary, Deputy Register of Copyrights). See generally Ringer, First Thoughts on the Copyright Act of 1976, 22 N.Y.L. SCH. L. REV. 477, 484-90 (1977).

236 See, e.g.. CLR PART 5, supra note 205, at 61 (remarks of Irwin Karp, Authors' League of America); CLR PART 3, supra note 203, at 109-17, 184-86 (colloquy); CLR PART 2, supra note 6, at 247-62 (written comments of Authors' League of America, Inc.).

237 See, e.g.. CLR PART 5, supra note 205, at 58-59 (remarks of Edward Sargoy. ABA); id. at 96 (remarks of Phillip Wattenberg, Music Publishers' Ass'n); id. at 105 (remarks of Sidney M. Kaye, BMI); CLR PART 3, supra note 203, at 168-69 (remarks of Bella Linden).

238 For example, a proposal for a broad exemption for educational institutions evolved into a request for a narrow photocopying privilege. Representatives of educational institutions were included on the panel, but sat through early panel meetings with few comments. See CLR PART 2, supra note 6, at 42 (remarks of William Fidler, American Ass'n of University Professors). Others suggested a broad exemption for nonprofit use. See, e.g., id. at 223 (written comments of Eugene Aleinikoff). When it appeared that the panel was unlikely to endorse a nonprofit exemption, representatives of educators proposed a broad educational exemption. See CLR PART 3, supra note 203, at 150-51 (remarks of Harry N. Rosenfield). Confronted with intense opposition from publishers of textbooks, the panelists drafted a narrower, conditional educational exemption. See HOUSE COMM. ON THE JUDICIARY, 88TH CONG., 2D SESS.. COPY. RIGHT LAW REVISION PART 4: FURTher Discussions and COMMENTS ON PRELIMINARY DRAFT FOR REVISED U.S. COPYRIGHT LAW 217.25 (Comm. Print 1964) (hereinafter CLR PART 4] (remarks of Harry N. Rosenfield, Nat'l Education Ass'n); CLR PART 5, supra note 205, at 222-23 (written comments of Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revision). By the time of the first congressional hearings on the revision bill, educators focused their request on a privilege for limited educational photocopying. See 1965 Senate Hearings, supra note