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The impending "Digital Millennium" has amplified the assertion of users' rights in U.S. copyright law. Copyright has been reimagined as a "law of users' rights" whose acolytes caution copyright owners not to stand as piggish impediments to the progress of learning and culture in the Digital Age. Proponents advance a variety of arguments in support of a user rights construct of copyright law, from the historical to the philosophical to the pragmatic. I propose to address some of these. But first it is important to specify what I mean by "users' rights" in U.S. copyright law today.

User rights in fact come in several guises, some of them sheltering commercial self-interest. In the past, I have analyzed "consumptive" end-user claims to personal enjoyment and convenience through private copying. In this essay, I would instead like to consider some examples of intermediate entrepreneurs' claims of right to free exploitation of copyrighted works. One concerns intermediaries that redisseminate copyrighted works without their authors' or proprietors' permission, notably remote radio broadcasts, and articles on events of current news interest. Another concerns works that spin off from a prior work's popularity. What underlies these claims and, for me, binds them to consumptive user rights demands, is their common invocation of a public interest in access to information and culture. In the former instance, the third party, by enlarging the works' audience, arguably is stimulating public debate on matters of public concern. In the latter case, the unauthorized user is offering new items of popular culture to a public whose demand for new variations on tried and true works is increasingly insatiable. So far, U.S. courts have not proved especially hospitable to assertions of the rights of intermediate users, but it is conceivable that the rhetoric employed to advance the cause of end-users may come to erode authors' protections against intermediaries as well.


Intellectual Property Law | Law