Chapter 10 Footnote 2

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A founding work is David Lange, “Recognizing the Public Domain,” Law and Contemporary Problems 44 (1981): 147. There are many important foundations, however, to this argument. See, for example, Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia University Press, 1967). Gordon (“Fair Use as Market Failure”) argues that the courts should employ fair use to permit uncompensated transfers that the market is incapable of effectuating; see also Wendy J. Gordon, “On Owning Information: Intellectual Property and Restitutionary Impulse,” Virginia Law Review 78 (1992): 149. In “Reality as Artifact: From Feist to Fair Use” (Law and Contemporary Problems 55 5PG [1992]: 93, 96), Gordon observes that, while imaginative works are creative, they may also comprise facts, which need to be widely available for public dissemination. Gordon’s “Toward a Jurisprudence of Benefits: The Norms of Copyright and the Problem of Private Censorship” (University of Chicago Law Review 57 [1990]: 1009) is a discussion of the ability of copyright holders to deny access to critics and others; see also Wendy Gordon, “An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory,” Stanford Law Review 41 (1989): 1343.