Against dicta: A legal method for rescuing fair use from the right first publication

Beginning with the 1985 Supreme Court decision in Harper & Row Publishers, Inc. v. Nation Enterprises, the judiciary has pit the interests of the press, biographers, historians, and their readers against the interests of diarists, letter writers, and manuscript drafters in controlling access to unpublished papers. The Article summarizes the judicial decisions, copyright legislation, scholarly criticism, and trade publishing practices during the succeeding fifteen years. The first thesis is that "loaded" judicial rhetoric used to bolster a few hard judgments, and subsequent courts' reliance on that dicta, has subjected to the property-rights regime of copyright nearly every bit of expression written by an individual, without regard to the individual's interest in the expression or its Value to the public. The second thesis is that the judicial rhetoric has inspired and now sustains a private law of publishing that essentially bars the unlicensed quotation of any unpublished writings. This private law disserves readers interests in accuracy and reasoned debate about texts, events, and characters. The third thesis is that the courts' inability to acknowledge privacy-like interests within the traditional utilitarian rhetoric of American copyright law has contributed to the "loaded" rhetoric. Together, these three theses suggest that judicial rhetoric deserves greater attention because it can generate "doctrine" as enduring as any "holding.