ARTICLES

1255

ARTICLES

DISAPPEARING CONTENT

†

MARK A. LEMLEY

ABSTRACT

One of the great advantages of digital content has been that, for the last forty

years, people have had access to whatever content they want, whenever they

wanted it. That is starting to change. We’re moving backwards. Content is

disappearing—not just becoming available only in limited times or

circumstances but becoming entirely unavailable.

It doesn’t need to be that way. It is now cheap and easy enough to make all

content available. If the copyright owner can’t or won’t continue to provide a

published work, others should be permitted to pick up the slack. Fair use should

encompass a right of access to published content. That right, like all of fair use,

ought to have limits and exceptions. I discuss a number of complications and

reasons why copyright owners might lawfully remove content. But a basic right

to continued access to published work is consistent with the fundamental

purposes of copyright.

In the past, we might have aspired to a world in which all the works of history

were available forever. That’s now an achievable goal. The dead hand control

of copyright shouldn’t stand in the way.

†

William H. Neukom Professor, Stanford Law School; partner, Durie Tangri LLP. Thanks

to Akshat Agrawal, Michael Barclay, Jeanne Fromer, Kristelia Garcia, Andrew Gilden, Jacob

Goldin, Eric Goldman, Paul Goldstein, Rose Hagan, Jake Linford, Tyler Ochoa, Lisa

Ouellette, Tony Reese, Betsy Rosenblatt, Steve Ross, Guy Rub, Jessica Silbey, Xiyin Tang,

Rebecca Tushnet, Ryan Vacca, Jacob Victor, Rob Walker, and participants at the 2021 WIPIP

conference and a workshop at Stanford Law School for comments on a prior draft, and Tyler

Robbins for research assistance.

1256 BOSTON UNIVERSITY LAW REVIEW [Vol. 101:1255

CONTENTS

INTRODUCTION ............................................................................................. 1257

I. A BIG STEP BACKWARDS .................................................................. 1257

II. A RIGHT TO ACCESS CONTENT? ........................................................ 1268

A. Fair Use and Out-of-Print Works .............................................. 1268

B. Complications ............................................................................ 1274

1. Unacceptable Justifications for Disappearing Content ....... 1274

2. Legitimate Reasons to Make Content Disappear ................ 1278

3. Where to Get a Copy ........................................................... 1282

4. Disappearing Technology Platforms ................................... 1283

5. Gaming the System ............................................................. 1285

6. Reappearing Content ........................................................... 1286

CONCLUSION ................................................................................................. 1288

2021] DISAPPEARING CONTENT 1257

INTRODUCTION

El Ministerio del Tiempo (The Ministry of Time) is a TV series that ran for

four seasons on Spanish TV and got picked up by Netflix. It tells the story of a

group of government bureaucrats who travel back to various points in time to

prevent alteration or damage to the history of Spain. It is smart, funny, and has

excellent character development. You really should watch it.

There’s just one problem: you can’t. It’s not on television anymore, even in

Spain. And it’s no longer available on Netflix, one of the many shows that

Netflix removes every month to make room for content with higher demand.

Nor can you find it on Amazon, or Hulu, or any of the growing number of TV

streaming sites.

Even the old-school standby—DVD—won’t help you, at least

in the United States. DVDs are region coded, part of an antiquated effort to make

piracy harder,

and El Ministerio del Tiempo was only ever released with a

“region 2” code, which means American (or Asian) devices won’t play it.

Maybe you can find it on a pirate site somewhere, but there is no legal way to

watch the show. It has disappeared.

In Part I, I explain why more and more content is disappearing, no longer

effectively accessible to customers who for decades have been able to access

content on demand. In Part II, I suggest some things copyright law could do to

keep content from disappearing.

I. A BIG STEP BACKWARDS

For the past forty years, longer than most Americans have been alive,

the

defining characteristic of content has been that people could watch, read, or

listen to what they wanted when they wanted it. It wasn’t always so. For most

of the history of the entertainment industry, movies and television shows were

Try to see El Ministerio del Tiempo (Onza Partners and Cliffhanger Feb. 24, 2015).

Kudos to the Boston University Law Review editor Kaitlin Ostling who found it on

Netflix . . . in Nicaragua. I’m contemplating a trip there now . . . .

Since this writing, Amazon added the first two seasons—but only those seasons—to

Prime Video and only with a subscription to FlixLatino. El Ministerio del Tiempo, AMAZON

PRIME VIDEO, https://www.amazon.com/Cualquier-Tiempo-Pasado/dp/B08L7HTVRY

/ref=sr_1_1?crid=F1RD92FBS8XV&dchild=1&keywords=el+ministerio+del+tiempo&qid=

1623364952&s=instant-video&sprefix=el+m%2Cinstant-video%2C208&sr=1-1 (last visited

Sept. 1, 2021).

See Peter K. Yu, A Hater’s Guide to Geoblocking, 25 B.U. J. SCI. & TECH. L. 503, 507-

12 (2019) (criticizing efforts to divide access to content by region).

And since it was released in Spain, even if you could watch it, it might not come with

English subtitles. The Nicaraguan Netflix version doesn’t.

The median age of the U.S. population was 38.4 years in 2019. See Statista Rsch. Dep’t,

Median Age of the Resident Population of the United States from 1960-2019, STATISTA (Jan.

20, 2021), https://www.statista.com/statistics/241494/median-age-of-the-us-population

/#:~:text=In%202018%2C%20the%20median%20age,even%20younger%2C%20at%2029.5

%20years.&text=The%20year%202035%20is%20expected,population%20of%20the%20U

nited%20States [https://perma.cc/AA4L-PVPF].

1258 BOSTON UNIVERSITY LAW REVIEW [Vol. 101:1255

offered at specific times for limited runs.

If you didn’t see it when the content

owner decided to show it to you, you were out of luck. Video content was, in

effect, a sort of livestream that offered no opportunity to record or replay it. Miss

it when it was shown? Too bad for you.

Things were somewhat better with music and books. If you happened to buy

a book or a record you could keep it and enjoy it at your leisure. But whether

you could find the song or book you wanted was again largely at the mercy of

the entertainment industry, which decided what stayed in print and what got

stocked on store shelves.

Stores with limited space tended to stock current

bestsellers and a small archive of “classic” music or books.

But if a song or a

book didn’t make it to that iconic status, it would disappear from stores after a

year or two. Then your best hope was to borrow one from a library for a limited

period or to frequent used book or record stores in hopes of finding a resale

copy.

Recording devices changed all that. If you couldn’t watch something when it

was on TV, you could record it to watch later.

With more difficulty (as there

was rarely a schedule), you could do the same thing with songs played on the

radio. Content owners fought tooth and nail to stop the recording of content,

because they structured their business models around windows of availability

See, e.g., January 29, 1990, TV TANGO, http://www.tvtango.com/listings/1990/01/29

[https://perma.cc/64SB-QJRQ] (last visited Sept. 1, 2021) (showing tv guide for evening of

January 29 of 1990).

See Alan Rinzler, Shelf Wars: What Authors Need to Know About Bookstore Visibility,

ALAN RINZLER CONSULTING ED.: BOOK DEAL (Apr. 13, 2010),

https://alanrinzler.com/2010/04/shelf-wars-what-authors-need-to-know-about-bookstore-

visibility/ [https://perma.cc/47DB-NJAE].

See Mike Shatzkin, Buying Is a Hard Thing for Bookstores to Do Effectively, and That

Becomes an Increasingly Important Reality for Publishers, IDEA LOGICAL CO. (Jan. 23, 2013),

https://www.idealog.com/blog/buying-is-a-hard-thing-for-bookstores-to-do-effectively-and-

that-becomes-an-increasingly-important-reality-for-publishers/ [https://perma.cc/3ML8-

QEJ7].

R. Anthony Reese, The First Sale Doctrine in the Era of Digital Networks, 44 B.C. L.

REV. 577, 586-90 (2003) (explaining how secondary markets, rentals, and libraries make

works available without permission of copyright owner).

DVR, TECHTERMS, https://techterms.com/definition/dvr [https://perma.cc/EKC7-

TBHP] (last visited Sept. 1, 2021) (“[A DVR] can be used to record, save, and play back

television programs.”).

2021] DISAPPEARING CONTENT 1259

and because they worried about losing ad revenue.

But once they lost that fight,

they discovered—as they always seem to—that allowing people access to

content when they wanted it greatly expanded the market, to their benefit as well

as consumers’.

shows to the public, though they faced the same store-shelf constraint that books

and music did.

Then, the growing popularity of the Internet allowed copyright

owners to capitalize on that discovery, selling books, CDs, and DVDs online for

works that would never make it onto brick-and-mortar store shelves.

But while the availability of recording and of physical media for purchase

online dramatically expanded the number and kinds of works people had access

to, it shifted the storage problem from the retail store to the user, who quickly

See, e.g., Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 491 (1984) (holding

manufacturing of VCRs was not copyright infringement even though consumers could use

them to record copyrighted television content); see also Mark A. Lemley, Is the Sky Falling

on the Content Industries?, 9 J. ON TELECOMM. & HIGH TECH. L. 125, 128-30 (2011)

(discussing entertainment industry’s fights against cassette tapes and VCRs). This lovely

graphic was the 1970s equivalent of the “you wouldn’t steal a car” anti-piracy ads. Id.

See James Lardner, How Hollywood Learned to Stop Worrying and Love the VCR :

Home Video Has Diminished the Power of the Studios—But Not Their Profits., L.A. TIMES

(Apr. 19, 1987, 12:00 AM), https://www.latimes.com/archives/la-xpm-1987-04-19-tm-1667-

story.html; see also M. Bjørn von Rimscha, How the DVR Is Changing the TV Industry—A

Supply-Side Perspective, 8 INT’L J. ON MEDIA MGMT. 116, 117-18 (2009) (discussing DVR as

“supply-side innovation” that benefits content distributors more than consumers); Lemley,

supra note 12, at 131 (“[The DVR] revitalized [the television] industry because a lot of people

like me who didn’t watch television suddenly discovered that when they could choose when

and where they wanted to see their programming, there was actually a bunch of good stuff on.

And the 2000s became the Golden Age of television.”).

See Everett Rogers, Video Is Here to Stay, CTR. FOR MEDIA LITERACY,

http://www.medialit.org/reading-room/video-here-stay [https://perma.cc/LJV8-NUNH] (last

visited Sept. 1, 2021) (“[T]he fast takeoff in VCR adoption came only when a quantity – and

variety – of pre-recorded cassette tapes, especially movies, became readily available, at low

cost, through the neighborhood video store.”).

See Padraig Belton & Matthew Wall, Did Technology Kill the Book or Give It New

Life?, BBC NEWS (Aug. 14, 2015), https://www.bbc.com/news/business-33717596

[https://perma.cc/BJQ9-6ZQN].

1260 BOSTON UNIVERSITY LAW REVIEW [Vol. 101:1255

ended up with a bulky library of content.

Digital downloads and remote storage

in turn alleviated that problem. After once again fighting tooth and nail to

prevent consumers from getting their content in digital form,

content owners

yet again realized that they benefited from the latest system, as their marginal

distribution and storage costs dropped almost to zero. Consumer storage costs

didn’t disappear, but they changed; digital downloads don’t take up physical

space, but they require electronic devices with larger and larger memories.

Over the past decade, both video and music content have largely moved from

digital downloads to streaming. Streaming technology took advantage of the

ubiquity of broadband Internet connections.

People no longer had to download

content in advance to have access to it. It would come to them in real time as

they requested it over a broadband Internet connection. Paul Goldstein’s

“celestial jukebox” from a quarter century ago has come to life—not just for

music but for all content.

Content owners tried to stop this revolution too,

but once again they were

fortunate the courts largely rejected their efforts to stifle the technology. The

ease and convenience of streaming has made it the dominant way people get

their music and video content today,

and content owners have turned that into

See Jacob Waite, The Horrifying World of VHS Collectors, MEDIUM (June 26, 2017),

https://medium.com/@waiteski/the-horrifying-world-of-vhs-collectors-35853f093e8 (noting

how avid VHS collectors encounter storage constraints).

See Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121, 139-40 (2d Cir. 2008)

(holding remote storage DVR does not infringe Cartoon Network’s reproduction right); Fox

Broad. Co. v. Dish Network LLC, 160 F. Supp. 3d 1139, 1172-73 (C.D. Cal. 2015) (finding

DISH’s PrimeTime Anytime and commercial-skipping DVR services did not violate Fox’s

copyrights); Lemley, supra note 12, at 130-31 (discussing entertainment industry’s fight

against MP3 player and DVR). See generally Mark A. Lemley & R. Anthony Reese, Reducing

Digital Copyright Infringement Without Restricting Innovation, 56 STAN. L. REV. 1345 (2004)

(discussing history and economics of digital copyright infringement).

See aricarlospena, Netflix’s Growth Alongside Digital Transformation, DIGIT.

INNOVATION & TRANSFORMATION: MBA STUDENT PERSPS. (Feb. 1, 2018),

https://digital.hbs.edu/platform-digit/submission/netflixs-growth-alongside-digital-

transformation/# [https://perma.cc/AJ7U-DVE3] (linking Netflix’s success to its innovative

use of streaming technology).

PAUL GOLDSTEIN, COPYRIGHT’S HIGHWAY: FROM GUTENBERG TO THE CELESTIAL

JUKEBOX 125 (1994) (“[A] technology-packed satellite orbiting thousands of miles above

earth, awaiting a subscriber’s order—like a nickel in the old jukebox, and the punch of a

button—to connect him to a vast storehouse of entertainment and information . . . .”).

See, e.g., Am. Broad. Cos. v. Aereo, Inc., 573 U.S. 431, 437-38 (2014); Ferrick v.

Spotify USA Inc., No. 16-cv-08412, 2018 U.S. Dist. LEXIS 86083 (S.D.N.Y. May 22, 2018).

Netflix use alone surpasses cable and satellite use combined. See After a Boom Year in

Video Streaming, What Comes Next?, PWC,

https://www.pwc.com/us/en/services/consulting/library/consumer-intelligence-

series/consumer-video-streaming-behavior.html [https://perma.cc/9RYH-BHVG] (last

visited Sept. 1, 2021). And streaming makes up the majority of music industry revenue.

Statista Rsch. Dep’t, Music Industry Revenue Worldwide from 2012 to 2021, by Source,

2021] DISAPPEARING CONTENT 1261

an ongoing rather than a onetime revenue stream.

And once again, despite

predictions of disaster, content owners are making more money under the new

system than they were before.

Streaming has benefits. It is far better for the environment than printing plastic

discs and moving them from place to place on trucks.

It is also better in

significant ways than downloads.

Content no longer takes up space on the

user’s device. It might not take up space on the content creator’s system either,

as most streaming is done through third parties like YouTube, Amazon, or

Netflix.

It can be stored in the cloud in efficient servers with lots of room and

fast, reliable delivery.

And consumers can access streamed content from any

STATISTA (Jan. 8, 2021), https://www.statista.com/statistics/239276/growth-of-the-global-

music-revenue-by-type/.

The Music Modernization Act of 2018 significantly expanded the returns copyright

owners receive from streamed music. Orrin G. Hatch—Bob Goodlatte Music Modernization

Act, Pub. L. No. 115-264, 132 Stat. 3676 (2018).

Broadcast industry revenue doubled from 2005 to 2019. Amy Watson, Estimated

Revenue of the U.S. Broadcasting Industry from 2005 to 2019, STATISTA (Jan. 18, 2021),

https://www.statista.com/statistics/184176/estimated-revenue-of-the-us-broadcasting-

industry-since-2005/ [https://perma.cc/TXC6-N9RS] (“In 2019, the American broadcasting

industry generated a total revenue of 177.48 billion U.S. dollars, an increase from 173.89

billion U.S. dollars in 2018. This 2019 estimate represents the highest annual aggregate

revenue of the U.S. broadcasting industry in the time frame from 2005 to 2019, including

radio networks, television broadcasting, and cable.”). Music industry revenue declined

sharply after 1999, albeit arguably from an artificial high, but it has been increasing for years

and has grown more than 50% since 2014. Felix Richter, From Tape Deck to Tidal: 40 Years

of U.S. Music Sales, STATISTA (Mar. 5, 2021), https://www.statista.com/chart/17244/us-

music-revenue-by-format/ [https://perma.cc/88BL-U938]. Video game industry revenue

doubled from 2006 to 2020. Omri Wallach, 50 Years of Gaming History, by Revenue Stream

(1970-2020), VISUAL CAPITALIST (Nov. 23, 2020), https://www.visualcapitalist.com/50-

years-gaming-history-revenue-stream/ [https://perma.cc/WB2X-Z6P6].

Will Bedingfield, We Finally Know How Bad for the Environment Your Netflix Habit

Is, WIRED (Mar. 15, 2021, 6:00 AM), https://www.wired.co.uk/article/netflix-carbon-

footprint [https://perma.cc/B7T5-S73L] (“Netflix claims that one hour of streaming on its

platform in 2020 used less than 100gCO2e (a hundred grams of carbon dioxide equivalent) –

that’s less than driving an average car a quarter of a mile.”).

See Sarah Griffiths, Why Your Internet Habits Are Not as Clean as You Think, BBC

(Mar. 5, 2020), https://www.bbc.com/future/article/20200305-why-your-internet-habits-are-

not-as-clean-as-you-think [https://perma.cc/7RL2-LWDY] (“Many of the major cloud

providers, however, have pledged to cut their carbon emissions, so storing photos, documents

and running services off their servers where possible is one approach to take.”).

Increasingly the latter also create their own content. See Alan Sepinwall, The 20 Best

Shows Made for Streaming—So Far, ROLLING STONE (Nov. 21, 2018, 1:54 PM),

https://www.rollingstone.com/tv/tv-features/20-best-streaming-original-shows-so-far-

757702/ [https://perma.cc/98YR-FBTV].

Case Study: How Netflix Uses Cloud for Innovation, Agility and Scalability, CLOUDSINE,

https://www.cloudsine.tech/news-trends/case-study-how-netflix-uses-cloud-for-innovation-

agility-and-scalability/ [https://perma.cc/53RT-RMKQ] (last visited Sept. 1, 2021) (“By

1262 BOSTON UNIVERSITY LAW REVIEW [Vol. 101:1255

device—at least as long as they have a broadband Internet connection.

Streaming also makes economic sense as a value allocation mechanism. It allows

the market to value intensity of preference, rewarding those who write songs

people play over and over again more than those whose songs are played once

or twice and allowing people to try out content without making a significant

investment in purchasing a disc or paying to download a movie.

But streaming had one important, unforeseen effect—it took control over

what content was available out of the hands of consumers.

Unlike DVDs or

digital downloads, which were (mostly) buy-and-keep arrangements,

what you

can stream at any given time depends on what is available on streaming

platforms. And unlike downloads, where people tend to access any given piece

of content on the server only once and then replay it locally, streaming requires

that the provider devote lots of resources to popular content that many people

want to stream at the same time. Further, content licensing deals usually last only

for a limited time and frequently include up-front or minimum payments rather

than just pay per stream.

running on [the cloud], [Netflix] provided billions hours [sic] of service to customers around

the globe.”).

The move to streaming is frustrating for frequent airline travelers, since no one could

accurately describe airplane Internet as broadband. And it’s a problem for those in poor or

rural areas that lack broadband access. See Andrew Perrin, Digital Gap Between Rural and

Nonrural America Persists, PEW RSCH. CTR. (May 31, 2019),

https://www.pewresearch.org/fact-tank/2019/05/31/digital-gap-between-rural-and-nonrural-

america-persists/ [https://perma.cc/R95G-TSGT].

While physical sales and downloads generally offer unlimited use for a fixed price and

compensate artists according to the number of sales, streaming compensates artists based on

the number of times a work is played. See Dmitry Pastukhov, What Music Streaming Services

Pay Per Stream (And Why It Actually Doesn’t Matter), SOUNDCHARTS BLOG (June 26, 2019),

https://soundcharts.com/blog/music-streaming-rates-payouts [https://perma.cc/974P-9H7W].

For an early prediction along these lines, see Reese, supra note 10, at 630-34.

Aaron Perzanowski and others have noted that the move to digital content often came

with contract restrictions on what you could do with that content and even whether you really

“owned” it at all. Chris Jay Hoofnagle, Aniket Kesari & Aaron Perzanowski, The Tethered

Economy, 87 GEO. WASH. L. REV. 783, 798 (2019). Courts have held that there is no right to

resell digital content akin to the right to resell a book or DVD. Capitol Records, LLC v. ReDigi

Inc., 910 F.3d 649, 655 (2d Cir. 2018). And there have been notorious cases where content

providers sought to take back digital content they had already provided to users—including,

in a delicious piece of irony, George Orwell’s 1984. See also Rebecca Crootof, The Internet

of Torts: Expanding Civil Liability Standards to Address Corporate Remote Interference, 69

DUKE L.J. 583, 585-86 (2019) (explaining how companies engage in remote interference, “the

practice of employing an over-the-air update to remotely alter or deactivate a physical

device”); Julie E. Cohen, Copyright and the Jurisprudence of Self-Help, 13 BERKELEY TECH.

L.J. 1089, 1108-09 (1998).

Brian Beers, How Netflix Pays for Movie and TV Show Licensing, INVESTOPEDIA (Aug.

6, 2020), https://www.investopedia.com/articles/investing/062515/how-netflix-pays-movie-

and-tv-show-licensing.asp [https://perma.cc/FP3Y-PUL7].

2021] DISAPPEARING CONTENT 1263

The result of all this is that it doesn’t always make sense for Netflix to keep a

large library of content around. Netflix may maximize its revenues by devoting

a lot of bandwidth to streaming Tiger King to many people rather than offering

a wider array of content that relatively few people are interested in and for which

it has to pay minimum fees. Especially when it comes time to renegotiate deals,

Netflix may just drop the show from its catalog.

Indeed, every month various

people publish a list of dozens of movies and TV shows that will disappear from

Netflix over the following thirty days.

Those include not just shows that never

found a significant audience but blockbusters and highly acclaimed movies that

are just a few years old.

Like the old-style record and bookstores, everything

but the newest and most popular movies and TV shows are quickly moved out

to make room for new stuff.

Video games face a similar cycle. As Glynn Lunney has shown, the vast

majority of video games sell few if any copies.

The game developer may stop

supporting the game or simply remove it for no reason.

And unlike movies,

many games (multiplayer games, obviously, but even others) require continued

support from the developer and updates to work with new platforms and

software.

In addition, game platforms like PlayStation and Steam will

sometimes remove those games without explanation, perhaps because of a

licensing dispute or violation of terms of service,

but perhaps because older or

On YouTube, by contrast, videos are forever, at least for now. See Shivang, YouTube

Database—How Does It Store So Many Videos Without Running Out of Storage Space?,

8BITMEN.COM, https://www.8bitmen.com/youtube-database-how-does-it-store-so-many-

videos-without-running-out-of-storage-space/ [https://perma.cc/8SFA-UB8S] (last visited

Sept. 1, 2021). But with over 500 hours of content uploaded to the site every minute, YouTube

may eventually decide it’s not worth storing old videos with few or no views. Anmar

Frangoul, With Over 1 Billion Users, Here’s How YouTube Is Keeping Pace with Change,

CNBC (Mar. 14, 2018, 4:54 AM), https://www.cnbc.com/2018/03/14/with-over-1-billion-

users-heres-how-youtube-is-keeping-pace-with-change.html [https://perma.cc/5YAS-

XVAQ]. Indeed, they have already stopped monetizing them. See YouTube Partner Program

Overview & Eligibility, YOUTUBE HELP https://support.google.com/youtube

/answer/72851?hl=en [https://perma.cc/P3PK-DN93] (last visited Sept. 1, 2021).

See, e.g., Savannah Salazar, What’s Leaving Netflix: August 2021, VULTURE (July 23,

2021), https://www.vulture.com/article/whats-leaving-netflix-movies-shows.html.

Id.

Glynn S. Lunney, Jr., Copyright and the 1%, 23 STAN. TECH. L. REV. 1, 37-50 (2020).

This is a general phenomenon. See CHRIS ANDERSON, THE LONG TAIL 6-10 (2006) (showing

that vast majority of works get very few users).

Games at Risk of Removal, STEAM, https://store.steampowered.com/curator/31857481-

Games-at-risk-of-removal/list/35810 [https://perma.cc/QH4J-AJFG] (last visited Sept. 1,

2021).

See David Fried, What Does a Game Dev Team Do After a Game Is Released?, QUORA

(2017), https://www.quora.com/What-does-a-game-dev-team-do-after-a-game-is-released-

Is-the-entire-team-needed-to-maintain-the-game [https://perma.cc/2VES-EPZY].

Andy Chalk, Valve Removed 1000 Games from Steam Because Publishers Were

‘Abusing’ Steamworks, PC GAMER (Nov. 25, 2019), https://www.pcgamer.com/1000-games-

were-just-removed-from-steam-and-we-dont-know-why/ [https://perma.cc/AC8U-GHKW].

1264 BOSTON UNIVERSITY LAW REVIEW [Vol. 101:1255

low-performing games just aren’t lucrative enough,

or they hope to upsell users

on a more expensive version.

Games have even been removed from the world

because their creator decided they were making the world a worse place.

Something similar happens with music, though more often because of

licensing issues than storage space.

As the world moved from music

downloads to streaming services like Spotify and Apple Music, people lost

control over their playlists, because whether a song stayed on that playlist

became a function of whether the streaming service had a continuing license.

Songs take up much less space than videos, so streaming services are less likely

to remove a song merely because it is unpopular. But the licensing regime for

music is more complicated,

and songs periodically disappear from Spotify and

other services because licenses lapse or are being renegotiated.

commonly, users who put one version of a song on a Spotify playlist may find

it replaced by a different version,

perhaps because one of the copyright owners

meterano7, List of Games Removed from PS Store, PSNPROFILES (Jan. 17, 2017),

https://forum.psnprofiles.com/topic/44702-list-of-games-removed-from-ps-store/

[https://perma.cc/D7AD-UXJX].

See Original Release of Ghost of Tsushima Now Available Only Through Director’s

Cut Pre-order, DELISTED GAMES (July 6, 2021), https://delistedgames.com/original-release-

of-ghost-of-tsushima-now-available-only-through-directors-cut-pre-order/

[https://perma.cc/XU48-YG75] (noting that Sony removed $40 listing of game Ghost of

Tsushima from PlayStation’s storefront and only makes available Director’s Cut edition,

which costs minimum of $59.99).

See, e.g., Lan Anh Nguyen, Exclusive: Flappy Bird Creator Dong Nguyen Says App

‘Gone Forever’ Because It Was ‘An Addictive Product,’ FORBES (Feb. 11, 2014, 2:30 AM),

https://www.forbes.com/sites/lananhnguyen/2014/02/11/exclusive-flappy-bird-creator-dong-

nguyen-says-app-gone-forever-because-it-was-an-addictive-product/

[https://perma.cc/8GLT-7BD6].

See generally Kristelia A. García, Penalty Default Licenses: A Case for Uncertainty, 89

N.Y.U. L. REV. 1117, 1117 (2014) (discussing ongoing “battle over terrestrial performance

rights—that is, the right of a copyright holder to collect royalties for plays of a sound

recording on terrestrial radio,” and the licensing landscape which controls music streaming).

See id. 1132-36; Lydia Pallas Loren, The Dual Narratives in the Landscape of Music

Music Transmissions: Existing Law, Major Controversies, Possible Solutions, 55 U. MIA. L.

REV. 237, 240-50 (2001).

See, e.g., Mark Savage, Hundreds of K-pop Songs Disappear from Spotify, BBC NEWS

(Mar. 1, 2021), https://www.bbc.com/news/entertainment-arts-56237626

[https://perma.cc/VM5P-YAFC] (stating that Spotify referenced the end of a licensing deal as

the reason for disruption).

See Chrissel313, Why Do Songs on Spotify Change?, SPOTIFY CMTY. (Apr. 6, 2017, 9:09

PM), https://community.spotify.com/t5/Content-Questions/Why-do-songs-on-Spotify-

change/m-p/1636198#M16009 [https://perma.cc/YBD7-SU28]; earlz, Spotify Is Playing a

Different Version of Some Songs, SPOTIFY CMTY. (Jan. 23, 2014, 5:21 PM),

https://community.spotify.com/t5/Desktop-Linux/Spotify-is-playing-a-different-version-of-

some-songs/m-p/662984#M1684 [https://perma.cc/YQ5V-WHZA]. Try to hear, e.g., MIKE

POSNER, Cooler Than Me, on 31 MINUTES TO TAKEOFF (J Records 2010). You’ll likely get

one of several alternate versions, not the main radio cut.

2021] DISAPPEARING CONTENT 1265

prefers to push people to that version or because some versions of a song (like

movie soundtracks) carry only limited rights.

The fact that content is removed from a streaming service doesn’t necessarily

mean it is gone forever. If you downloaded a game or made a copy of a movie

or song rather than just streaming it, you might still have access to it. And

because we haven’t yet fully moved to streaming, some of the content may still

be available on older formats like CDs, DVDs, or music downloads. But that is

mostly an artifact of the hybrid download/streaming system we have today. As

we move more and more exclusively to streaming, we should expect to see fewer

works made available in the form of physical disks in the first place. Download

options will likely also become rarer. And groups that make regular reliance on

fair use or other statutory exemptions, like teachers and churches, can’t simply

make a use that is unquestionably permitted if they don’t have an actual copy or

download to use as the basis for, say, showing in class.

Is there a way to keep consumer access to this disappearing content?

One

possibility would be to move from streaming back to downloads or physical

media—some system that involves physical possession and ownership. But that

seems unlikely, and would undo the advantages of a streaming regime.

Perhaps we could avoid having content disappear by having consumers make

permanent copies of their streams. But that’s not a satisfactory solution either.

While consumers today can often make their own copies,

it is not clear that

they can do so without permission, and even less clear that they will be able to

do so legally in the future. While consumers own physical books, CDs, and

DVDs and have the right to resell them,

they probably don’t own digital

downloads,

and they certainly don’t “own” things they stream, like the songs

See Peter Lawton & Claire Munro, Music in Films: The Soundtrack Album, THINKSYNC

MUSIC (2012), http://thinksyncmusic.com/guides/music-in-film-the-soundtrack-album/

[https://perma.cc/43ZT-XZMY] (noting difficulties in releasing film soundtrack albums due

to limited rights).

The problem would be much less significant if copyright terms didn’t last so long. When

copyrights expired after fourteen years, it was less likely that content would be inaccessible

by the time the copyright expired. See Fred Fisher Music Co. v. M. Witmark & Sons, 318

U.S. 643, 647 (1943) (“Anglo-American copyright legislation begins in 1709 with the Statute

of 8 Anne, c. 19. That act gave the author and his assigns the exclusive copyright for fourteen

years from publication . . . .”). But with copyright terms lasting ninety-five years or more, we

cannot rely on copyrights expiring before the works disappear. 17 U.S.C. § 302.

Spotify Premium, for instance, allows consumers to download the songs they stream.

But the right to keep those downloads extends only as long as the consumer keeps paying the

monthly fee for Premium. See Spotify Premium – Spotify (US), SPOTIFY,

https://www.spotify.com/us/premium/ [https://perma.cc/4VQ4-XMED] (last visited Sept. 1,

2021).

17 U.S.C. § 109(a).

See Vernor v. Autodesk, Inc., 621 F.3d 1102, 1111 (9th Cir. 2010) (holding that “a

software user is a licensee rather than an owner of a copy”). For discussion of the problems

this creates for consumers, who tend to expect that they own “their” copies, see Aaron

1266 BOSTON UNIVERSITY LAW REVIEW [Vol. 101:1255

in a Spotify playlist. Further, the “permanent” download may not be so

permanent, as users of both Netflix and Amazon Kindle have found out to their

chagrin when their purchased works disappeared.

Nor is it obvious that

consumers can just convert a stream into a permanent copy. Making copies from

a stream generally violates terms of use, and copyright owners have sued to stop

it.

The result of the “tethered economy” is that even devices we think we own

are often subject to restrictive license agreements, and our content can disappear

from those devices too.

gives them to “pull back” content for a variety of reasons. Maybe they want the

ability to change that content.

Maybe they no longer want it out in the world

because it is offensive to modern sensibilities.

Maybe they think they will

maximize their revenue by making their works available only for limited

Perzanowski & Jason Schultz, Copyright Exhaustion and the Personal Use Dilemma, 96

MINN. L. REV. 2067, 2068-69 (2012).

Netflix has downloaded content “expire” after a set amount of time. Downloaded Title

Says ‘Expired,’ NETFLIX: HELP CENTER, https://help.netflix.com/en/node/54865

[https://perma.cc/4ADR-QRWG] (last visited Sept. 1, 2021). And Amazon infamously erased

downloaded content from users’ Kindle devices—again ironically, George Orwell’s 1984.

See Brad Stone, Amazon Erases Orwell Books from Kindle, N.Y. TIMES (July 17, 2009),

https://www.nytimes.com/2009/07/18/technology/companies/18amazon.html.

See, e.g., Fox Broad. Co. v. Dish Network LLC, 160 F. Supp. 3d 1139, 1139 (C.D. Cal

2015); Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121, 123 (2d Cir. 2008).

See generally Hoofnagle et al., supra note 31. Hoofnagle, Kesari, and Perzanowski offer

an in-depth analysis of the extent of tethering in the modern world of connected consumer

devices and the legal restrictions it imposes on consumer access and autonomy. Their focus

is on other issues than copyright, however, and is on what happens to devices and content

once a copy exists in a consumer’s hands. The problem is parallel to, but distinct from, the

one I discuss. See also Crootof, supra note 31, at 585-93 (discussing businesses that use

remote access to consumer devices to remove content or interfere with its operation).

Try to find an original, unedited 1977 version of Star Wars today. It’s not easy. They

have all been replaced by the Episode IV version, which changed not only the title (it is now

called “A New Hope”) but also added new content, including, most notably, making it seem

that Han Solo didn’t shoot first. Sean Hutchinson, Why Finding the Original 1977 ‘Star Wars’

Verges on the Impossible, POCKET, https://getpocket.com/explore/item/why-finding-the-

original-1977-star-wars-verges-on-the-impossible?utm_source=pocket-newtab

[https://perma.cc/8RAF-VJQA] (last visited Sept. 1, 2021).

See, e.g., Rebecca Alter, Every Blackface Episode and Scene That’s Been Pulled from

Streaming So Far, VULTURE (June 29, 2020), https://www.vulture.com/2020/06/blackface-tv-

episodes-scenes-removed-streaming.html; Sean Malin, Interrogating, and Culling, TV’s

Archive, N.Y. TIMES, Aug. 19, 2020, at C1 (listing episodes of TV shows taken down from

Hulu, Netflix, and Amazon because they contained content deemed offensive or featured

actors accused of misconduct); Dr. Seuss: Six Books Withdrawn over ‘Hurtful and Wrong’

Imagery, BBC NEWS (Mar. 4, 2021), https://www.bbc.com/news/entertainment-arts-

56250658#:~:text=Among%20the%20six%20children’s%20titles,after%20consulting%20e

xperts%20and%20teachers [https://perma.cc/MSJ7-8LH7] [hereinafter Six Books

Withdrawn]; Reese, supra note 10, at 597-98 (discussing withdrawal of Amos ‘n Andy and

Speedy Gonzales cartoons).

2021] DISAPPEARING CONTENT 1267

windows.

Or maybe they think old works will cannibalize demand for new

works they want to push in the future.

That last reason is particularly likely

when the content is sold to a new company that competes with that content.

Indeed, companies sometimes buy competitors just to get control of their

content.

Even if creating permanent copies from a stream is legal, it’s not a full

solution to the problem of disappearing content. It may protect those who had

access to the work while it was streaming and thought to download and keep it.

But it won’t help you watch El Ministerio del Tiempo, the original Star Wars, or

any of the other shows, songs, or games that disappeared before you knew you

wanted to experience them. And it won’t help anyone who wants access to

something like an online video game or other app that requires continued

connection and support.

In short, an unanticipated consequence of the move to streaming is that more

and more content will effectively disappear from the public eye, at least

legally.

For the first time in forty years, we’re moving backwards, making

information harder rather than easier to access. That should worry us.

The Disney “Vault” exemplifies this strategy. See, e.g., Jenna Mullins, Disney Is Taking

a Movie out of the Vault, but Why Do They Hold Our Childhoods Hostage in the First Place?!,

E! ONLINE (Feb. 6, 2015, 3:27 PM), https://www.eonline.com/news/622675/disney-is-taking-

a-movie-out-of-the-vault-but-why-do-they-hold-our-childhoods-hostage-in-the-first-place

[https://perma.cc/2HJP-HVW9]; Thomas K. Arnold, ‘Bambi’ Is Back—for 70 ‘II’ Days, USA

TODAY (Feb. 6, 2006, 9:30 PM), https://usatoday30.usatoday.com/life/movies/news/2006-02-

06-bambi_x.htm [https://perma.cc/MG84-MBMB]. And record companies tried to pull

existing recordings of the Three Tenors to force customers to their new joint recording, an act

the D.C. Circuit held violated the antitrust laws because it was done jointly. Polygram

Holding, Inc. v. Fed. Trade Comm’n, 416 F.3d 29, 31 (D.C. Cir. 2005).

See Matt Zoller Seitz, Disney Is Quietly Placing Classic Fox Movies into Its Vault, and

That’s Worrying, VULTURE (Oct. 24, 2019), https://www.vulture.com/2019/10/disney-is-

quietly-placing-classic-fox-movies-into-its-vault.html (discussing how Disney’s practice of

limiting showing of classic movies in theaters focuses audience on new releases).

People who bought Focals AR glasses, for instance, lost all their functionality after

Google bought the product, shut it down, and removed the software from Google and Apple’s

app stores. See Winding Down Focals, NORTH, https://support.bynorth.com/hc/en-

us/articles/360045128691/ [https://perma.cc/V7BA-8BRU] (last visited Sept. 1, 2021).

See Eric Goldman & Jessica Silbey, Copyright’s Memory Hole, 2019 BYU L. REV. 929,

951-56 (discussing examples of people buying rights to copyrighted works to suppress them).

The examples Goldman and Silbey discuss are primarily motivated by a desire not to have a

negative depiction see the light of day, rather than by fears of competition. Id. On the problem

of “killer acquisitions”—companies that buy competitors in order to shut them down—see,

for example, Mark A. Lemley & Andrew McCreary, Exit Strategy, 101 B.U. L. REV. 1, 1

(2021); Colleen Cunningham, Florian Ederer & Song Ma, Killer Acquisitions, 129 J. POL.

ECON. 649, 649 (2021).

We could, I suppose, just pirate all this content. But that doesn’t seem a satisfactory

solution either. First, it too assumes someone has the ability to receive a stream, make an

(illegal) copy, and (illegally) share that copy with others. Even if that happens, not everyone

1268 BOSTON UNIVERSITY LAW REVIEW [Vol. 101:1255

But perhaps copyright law can help, as I suggest in the next Section.

II. A RIGHT TO ACCESS CONTENT?

A. Fair Use and Out-of-Print Works

The goal of copyright law is to encourage not just the creation of new works

but also public access to those works. Indeed, the ultimate end goal is to put a

variety of new works in the hands of the public.

While there are limited

circumstances in which copyright law protects works that are not intended to be

shared with the public—private letters, computer source code

—once a work is

released to the public, copyright law assumes that the public will have access to

it, first by paying a price to the copyright owner and eventually through the

mechanism of the public domain.

wants to rely on pirated content. They may believe it is morally wrong to engage in copyright

infringement. They may fear being sued or having their Internet access cut off if they are

identified as infringing. See, e.g., Mattias Gyllenvarg, Will My Internet Provider Shut Down

My Internet if I Torrent?, QUORA (2020), https://www.quora.com/Will-my-internet-provider-

shut-down-my-internet-if-I-torrent [https://perma.cc/G9GL-3T2E] (showing people’s worry

over the consequences of pirating via Torrent); see also Mitchell Clark, Frontier

Communications Is Getting Sued by Record Labels for Not Disconecting Pirates, VERGE

(June 10, 2021, 9:06 PM), https://www.theverge.com/2021/6/10/22528633/frontier-isp-

lawsuit-record-labels-piracy-disconnection [https://perma.cc/YU5Q-ZP9H] (highlighting

push for internet service providers to cut off Internet access for pirates). They may find it hard

to find a stable source of the content. Legitimate sites may not host the content because they

fear copyright liability. See, e.g., Rules and Policies: Copyright, YOUTUBE,

https://www.youtube.com/howyoutubeworks/policies/copyright/ [https://perma.cc/GSD2-

WKK7] (last visited Sept. 1, 2021). And pirate sites may be risky to use in other respects;

they may be more likely to contain malware, for instance. Tomáš Foltýn, Pirate Websites

Expose Users to More Malware, Study Finds, WELIVESECURITY (Mar. 21, 2018, 3:50 PM),

https://www.welivesecurity.com/2018/03/21/pirate-websites-malware-study/

[https://perma.cc/4DBV-PJ9E]. Even if none of that were true, I would find it troubling for

the law to say the only way to have access to a published work is to violate the law.

Nonetheless, pirated content may end up serving as a source from which users can obtain

otherwise-disappeared content in order to make fair use of it.

See generally Glynn S. Lunney, Jr., Reexamining Copyright’s Incentives-Access

Paradigm, 49 VAND. L. REV. 483 (1996) (discussing balancing act between increasing

David W. Barnes, The Incentives/Access Tradeoff, 9 NW. J. TECH. & INTELL. PROP. 96 (2010)

(arguing for adopting a “net benefits” approach towards copyright law).

Folsom v. Marsh, 9 F. Cas. 342, 346 (D. Mass. 1841) (No. 4,901) (“[T]he author of any

letter or letters . . . whether they are literary compositions, or familiar letters, or letters of

business, possess the sole and exclusive copyright therein . . . .”); Johnson Controls, Inc. v.

Phoenix Control Sys., Inc., 886 F.2d 1173, 1175 (9th Cir. 1989). For discussion of

circumstances when authors should be able to use copyright to prevent the public from ever

accessing a work, see Shyamkrishna Balganesh, Privative Copyright, 73 VAND. L. REV. 1, 61-

62 (2020); Goldman & Silbey, supra note 60, at 970-87.

See generally Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990)

(discussing role of public domain in creating incentives for further authorship).

2021] DISAPPEARING CONTENT 1269

Historically, that assumption was limited by the economics of producing and

distributing physical copies of works. It cost money and effort to keep a book or

record in print, and even more to keep a movie in theaters.

So it wasn’t

surprising that older works disappeared from stores, or at least became harder to

find. Nonetheless, an obscure book published in the 1920s exists in a number of

physical copies. Some might be destroyed or thrown away, but the rest will

survive, slowly deteriorating, perhaps for centuries. Other media, like film, is

more fragile, but multiple copies still exist to be stored and preserved.

The

physical nature of older media makes individual copies more durable, but by the

same token makes access to that content much more limited.

But technology has changed that dynamic. It has made it much easier to make

old, out-of-print works available to everyone. Google Book Search scanned

millions of out-of-print books, stored them, and made them all searchable

online.

The Internet Archive takes a snapshot of the entire Internet every few

weeks and makes it all available to search.

We no longer need giant libraries

to store physical artifacts. It is feasible to have all the world’s content available

to people who want to get it. Yet at the very time that it is easier to make out-of-

print works available to everyone, those works are in fact becoming harder to

find, since removing streaming content doesn’t leave behind old copies of works

people can find in libraries or used record stores (or Internet archives).

The law should respond to that technological change. The public should have

continued legal access to published content absent some compelling justification

for withdrawing it from the world. That goal would have been aspirational for

most of human history. But today it is technically feasible. It is ironic that the

way we deliver content is causing large swaths of it to disappear just as it is

possible to have access to all of it.

See, e.g., Dina Zipin, How Exactly Do Movies Make Money?, INVESTOPEDIA (Aug. 2,

2020), https://www.investopedia.com/articles/investing/093015/how-exactly-do-movies-

make-money.asp [https://perma.cc/K5UV-BJHL] (“Traditionally, a larger chunk went to the

studio during the opening weekend of a film. As the weeks went on, the theater operator’s

percentage rose. A studio might make about 60% of a film’s ticket sales in the United States,

and around 20% to 40% of that on overseas ticket sales.”).

For more information on how film is stored and preserved, see Karen F. Gracy,

Documenting the Process of Film Preservation, 3 THE MOVING IMAGE 1, 6 (2003); and

Francis C. Poole, Basic Strategies for Film Preservation in Libraries, 16 TECH. SERVS. Q. 1,

5-7 (1999). For empirical evidence on copyright’s effects on film soundtracks, see Paul J.

Heald, How Copyright Keeps Works Disappeared, 11 J. EMPIRICAL LEGAL STUD. 829, 844-

49 (2014).

About the Library Project, GOOGLE HELP,

https://support.google.com/websearch/answer/9690276 [https://perma.cc/WM3W-KUDC]

(last visited Sept. 1, 2021).

INTERNET ARCHIVE, https://archive.org/ [https://perma.cc/R2Y7-6VZH] (last visited

Sept. 1, 2021). In rare circumstances, content may be removed from the Internet Archive,

chiefly for privacy reasons. See David Bixenspan, When the Internet Archive Forgets,

GIZMODO (Nov. 28, 2018, 11:00 AM), https://gizmodo.com/when-the-internet-archive-

forgets-1830462131 [https://perma.cc/8TXV-23W2].

1270 BOSTON UNIVERSITY LAW REVIEW [Vol. 101:1255

Ordinarily, that lawful access will come from the copyright owner itself or its

licensee. Copyright owners can stream content, sell downloads, or sell physical

media containing their works. They can also license others the ability to do those

things.

When they do any of those things, the public has access to the content.

If the copyright owner makes the work accessible, copyright law will operate as

it normally does, preventing others from copying that work for most purposes,

allowing the copyright owner to reap the rewards.

But if a copyright owner decides to let their work go out of print or otherwise

become unavailable (or if the copyright owner itself goes out of business or can’t

be found),

the public’s interest in having access to published content is

implicated. Copyright’s fair use doctrine should allow a third party to make

those out-of-print works available unless there are compelling public reasons to

deny access.

Fair use is based on a fact-specific four-factor test, but some of those factors

matter more than others.

Stripped to its essentials, fair use generally permits

See James Griffin, Licensing and Exploiting, COPYRIGHTUSER.ORG

https://www.copyrightuser.org/understand/rights-permissions/licensing-exploiting/

[https://perma.cc/79Z9-8EKC] (last visited Sept. 1, 2021).

One complication is that the author and the copyright owner are often not the same

person. The director of El Ministerio del Tiempo may well want it to be shared as widely as

possible. But if the distributor, not the author, owns the copyright, it is the distributor’s

decision to withdraw the work that matters for copyright law. If, on the other hand, the author

retains the copyright and wants to distribute it, she is free to license it to others if Netflix drops

the show. That licensing constitutes exploitation. The work wouldn’t disappear, and the fair

use issue I discuss here wouldn’t arise. I discuss this issue in more detail infra notes 123-24

and accompanying text.

See generally Jennifer M. Urban, How Fair Use Can Help Solve the Orphan Works

Problem, 27 BERKELEY TECH. L.J. 1379 (2012) (discussing orphan works).

See Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522, 1533 (S.D.N.Y.

1991) (“[L]onger portions copied from an out-of-print book may be fair use because the book

is no longer available. (This has been thought to be true because, presumably, there is little

market effect produced by the copying. However, plaintiffs in this case convincingly argue

that damage to out-of-print works may in fact be greater since permissions fees may be the

only income for authors and copyright owners.)”).

The second fair use factor, “the nature of the copyrighted work,” 17 U.S.C. § 107(2),

rarely matters at all in some circuits. See Fox News Network, LLC v. TVEyes, Inc., 883 F.3d

169, 178 (2d Cir. 2018) (stating that second factor is essentially irrelevant). The Ninth Circuit

observed the second factor “has not been terribly significant in the overall fair use balancing.”

Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1402 (9th Cir. 1997). But

see Am. Soc’y for Testing & Materials v. Public.Resource.Org, Inc., 896 F.3d 437, 451-52

(D.C. Cir. 2018) (emphasizing importance of second factor in limiting copyright for industry

standards); Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1524-26 (9th Cir. 1992)

(emphasizing importance of second factor with respect to computer programs). For further

discussion on the second factor’s insignificance, see Robert Kasunic, Is That All There Is?

Reflections on the Nature of the Second Fair Use Factor, 31 COLUM. J.L. & ARTS 529, 532-

38 (2008); and Joseph P. Liu, Two-Factor Fair Use?, 31 COLUM. J.L. & ARTS 571, 576-77

2021] DISAPPEARING CONTENT 1271

uses of a copyrighted work that serve a legitimate purpose and don’t substitute

for a sale or license by the copyright owner.

In recent years the legitimate

purpose has usually been one that transforms the underlying work itself,

but

that isn’t required. A use may be fair because it serves a public benefit

because it is noncommercial and doesn’t interfere with the copyright owner’s

market.

The first factor—“the purpose and character of the use, including whether

such use is of a commercial nature or is for nonprofit educational purposes”—

might seem to favor the copyright owner in a suit against someone sharing out-

of-print content, at least when a defendant makes an out-of-print work available

for profit.

Copying an out-of-print work doesn’t transform that work. But I

think the first factor is capacious enough to weigh access to disappearing content

as a purpose favoring a finding of fair use, whether or not the underlying work

is transformed. As Jennifer Urban has argued, for at least one important category

of disappearing content—so-called orphan works—the fact that no copyright

owner can be found is central to the nature of the use being made.

That may

be true even if the copyright owner is known but has relinquished any economic

interest in the work.

Congress has expressed the view that a finding of fair use

should be more likely if a work is out of print.

(2008). The Supreme Court’s decision in Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183,

1201-03 (2021), may change that by emphasizing the importance of the second factor in that

case.

17 U.S.C. § 107. This is a radical shortening of a very complex, multifactor doctrine that

I discuss in more detail below.

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) (“The central purpose

of this investigation is to see . . . whether the new work merely supersede[s] the objects of the

original creation . . . or instead adds something new, with a further purpose or different

character, altering the first with new expression, meaning, or message; it asks, in other words,

whether and to what extent the new work is ‘transformative.’” (cleaned up). For further

discussion of the transformative use concept’s dominance, see Clark D. Asay, Arielle Sloan

& Dean Sobczak, Is Transformative Use Eating the World?, 61 B.C. L. REV. 905, 908 (2020);

and David Nimmer, “Fairest of Them All” and Other Fairy Tales of Fair Use, 66 LAW &

CONTEMP. PROBS. 263, 269 n.31 (2003).

See, e.g., Time Inc. v. Bernard Geis Assocs., 293 F. Supp. 130, 146 (S.D.N.Y. 1968)

(“There is a public interest in having the fullest information available on the murder of

President Kennedy.”).

See, e.g., Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 456 (1984) (finding

for fair use in part because “respondents failed to demonstrate that time-shifting would cause

any likelihood of non-minimal harm to the potential market for, or the value of, their

copyrighted works”).

17 U.S.C. § 107(1).

Urban, supra note 71, at 1395-1401.

Id. at 1397-98.

S. REP. NO. 94-473, at 64 (1975) (“If the work is ‘out of print’ and unavailable for

purchase through normal channels, the user may have more justification for reproducing it

1272 BOSTON UNIVERSITY LAW REVIEW [Vol. 101:1255

That conclusion could, if necessary, be grounded in a sufficiently broad

conception of transformative use. Even when a work itself isn’t transformed,

courts have increasingly found uses that open access to works to new markets to

be transformative.

But it could also be grounded in a broader recognition of a

public purpose supporting nontransformative uses that benefit the world. Part of

content.

That right means that making available content the copyright owner

has withdrawn from the world serves a public purpose, a factor that favors a

finding of fair use.

The commercial nature of the use may differ depending on who makes it.

Libraries and universities, or other nonprofits making archival uses, have the

strongest case. But even commercial entities selling the work won’t necessarily

have the first factor count against them. The Supreme Court has rejected any

presumption that commercial uses are unfair,

and with good reason. Many of

the most important transformative uses, as well as public interest uses and those

that facilitate access by others (like search engines), are made by for-profit

companies.

The fact that content goes out of print doesn’t affect directly factors two and

three in most cases. Some of those works will be factual works in which

protection is thin, but many will be artistic or fictional works at the core of

But the fact that a work is already published favors a finding of fair use,

and

some courts have held inaccessibility to support a finding of fair use under the

second factor.

And Goldman and Silbey suggest that acquisition of the

than in the ordinary case . . . .”); H.R. REP. NO. 94-1476, at 67 (1976); see also Maxtone-

Graham v. Burtchaell, 803 F.2d 1253, 1264 n.8 (2d Cir. 1986) (stating that “[a] key, though

not necessarily determinative, factor in fair use is whether or not the work is available to the

potential user” and citing Senate Report).

See, e.g., Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1202-05 (2021); Authors

Guild v. Google, Inc., 804 F.3d 202, 229 (2d Cir. 2015); Kelly v. Arriba Soft Corp., 336 F.3d

811, 818 (9th Cir. 2003); Jacob Victor, Utility-Expanding Fair Use, 105 MINN. L. REV. 1887,

1902 (2021). Authors Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d Cir. 2014), is particularly

instructive here. The Court found the digitization of books so they could be made available to

the disabled to be a transformative purpose even though the content of the books was

unchanged. Id. at 105.

See Lunney, supra note 62, at 529.

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).

Id. at 584.

See, e.g., Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 496-97 (1984)

(Blackmun, J., dissenting) (“[I]nformational works, such as news reports, that readily lend

themselves to productive use by others, are less protected than creative works of

entertainment.”).

See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 564 (1985).

See, e.g., Hofheinz v. A & E Television Networks, 146 F. Supp. 2d 442, 447-48

(S.D.N.Y. 2001) (applying this reasoning to use of a trailer for film released almost fifty years

2021] DISAPPEARING CONTENT 1273

finding of fair use by those who seek to make the work available.

As for the third factor, people will generally want to use the entirety of a

work—for example, watching a movie or playing a song. That weighs against a

finding of fair use. But as noted above, those factors are decidedly less

important, and they have not prevented courts from finding uses fair.

The most significant change to the fair use analysis when a work goes out of

print is to the fourth factor. The fourth factor—effect on the market for the

copyrighted work—is traditionally the most important.

By abandoning any

effort to sell or license the work, the copyright owner should be understood to

have relinquished any claim to market harm or effect under the fourth factor.

the work isn’t popular enough to justify continuing to make it available. But for

that very reason, they should not be heard to complain that someone who

continues to make the work available has cut into their sales. They weren’t going

to make those sales. Nor would there be a legitimate licensing market claim.

As noted above, a copyright owner who stops making the work available herself

but licenses others to make it available hasn’t let the work go out of print in the

first place, so my analysis here simply doesn’t apply. By hypothesis, content that

has disappeared is content that the copyright owner neither makes available

herself nor licenses anyone else to distribute.

In the ordinary case, then, there is little reason to deny the public access to a

work the copyright owner is no longer interested in exploiting. If a copyright

owner has let a work go out of print (or has itself gone out of business), others

earlier and not itself available on market and finding that second factor favored fair use); Basic

Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522, 1533 (S.D.N.Y. 1991) (“[L]onger

portions copied from an out-of-print book may be fair use because the book is no longer

available.”).

Goldman & Silbey, supra note 60, at 991-92.

See Sony, 464 U.S. at 456 (finding fair use despite entire work being copied); Fox Broad.

Co. v. Dish Network LLC, 160 F. Supp. 3d 1139, 1175-76 (C.D. Cal. 2015) (“The fact that

[the disputed copies] reproduce an entire work weighs against fair use, but is of ‘very little

weight’ compared with other factors due to the limited nature of the ultimate use.” (quoting

Fox Broad. Co. v. Dish Network, L.C.C., 905 F. Supp. 2d, 1088, 1104 (C.D. Cal. 2012))).

See Neil Weinstock Netanel, Making Sense of Fair Use, 15 LEWIS & CLARK L. REV.

715, 722 (2011); Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions,

1978-2005, 156 U. PA. L. REV. 549, 616-17 (2008); Nimmer, supra note 75, at 267.

See Urban, supra note 71, at 1406-09; Randal C. Picker, Private Digital Libraries and

Orphan Works, 27 BERKELEY TECH. L.J. 1259, 1280-82 (2012).

See Am. Geophysical Union v. Texaco Inc., 60 F.3d 913, 929-30 (2d Cir. 1994)

(“[C]ourts have recognized limits on the concept of ‘potential licensing revenues’ by

considering only traditional, reasonable, or likely to be developed markets when examining

and assessing a secondary use’s ‘effect upon the potential market for or value of the

copyrighted work.’” (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 592

(1994))); Mark A. Lemley, Should a Licensing Market Require Licensing?, 70 LAW &

CONTEMP. PROBS. 185, 187-91 (2007).

1274 BOSTON UNIVERSITY LAW REVIEW [Vol. 101:1255

should be legally entitled to copy that work to make it available to others. Once

content is public and the copyright owner has relinquished any interest in

profiting from it, there is a public interest in keeping that work available to the

world. The fair use doctrine should protect that interest.

That doesn’t mean we should expect a raft of fair use cases. Copyright owners

have already made the up-front investment to produce the work. Most of them

are happy to continue to make it available, or to license someone else to do so,

obviating the need to worry about it disappearing. That will be even more likely

once it is clear to them that abandoning the work in this way justifies copying

and distribution of the work by others. Indeed, interpreting the fair use doctrine

in this way may create a “penalty default” rule that encourages them to keep

works accessible.

If they still don’t distribute the work or license someone else

to do so, it will often be because they are out of business or have decided the

work isn’t worth paying attention to at all. In either case, they would be unlikely

to sue someone who picks the work up for continued use. It should be the rare

case in which we need to actually litigate a fair use case to prevent content from

disappearing.

B. Complications

This is law, so naturally it’s not quite as simple as that. In this section I

consider some ways copyright owners might seek to avoid this result, some

arguments that shouldn’t prevent a right to access public content, and a few that

should. These are the edge cases. Most of the time when content goes out of

print, the copyright owner just doesn’t care enough to keep it available. Indeed,

the copyright owner might not be in business anymore. In the cases I consider

in this section, the copyright owner affirmatively wants the world not to have

access to the work for some reason. The question is whether we should let them

withdraw this content from the world.

1. Unacceptable Justifications for Disappearing Content

Many of the reasons copyright owners might want to make their content

disappear are ones that copyright law should reject as inimical to its purposes.

Cannibalization. Copyright owners may remove content because they want

to replace it with new content. That new content might be unrelated. Copyright

owners who want to promote their newest show may fear that existing shows

will cannibalize the market for that show.

I’m not sure that fear is warranted;

On the idea of penalty defaults, see Ian Ayres & Eric Talley, Solomonic Bargaining:

Dividing a Legal Entitlement to Facilitate Coasean Trade, 104 YALE L.J. 1027, 1032-33

(1995); and Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic

Theory of Default Rules, 99 YALE L.J. 87, 95-107 (1989).

Reese, supra note 10, at 594 n.57.

2021] DISAPPEARING CONTENT 1275

there seems to be plenty of demand for both new and old shows.

But even if

they are right that people prefer the old works to the new, that shouldn’t justify

having the old content disappear altogether. Copyright owners have always

faced competition from old content in the form of used books, old movies, and

the like. The fact that the move to streaming makes it easier to withdraw those

old works from the world doesn’t mean the copyright owner should be able to

do so. Copyright owners are free to release new works and profit from both new

and old works. And they are free to promote the new work to drive traffic there.

But they shouldn’t be free to remove the old work from public access. If they

do, others should be able to provide those works under the fair use doctrine.

Artificial scarcity. While it is a closer case, I think the same should be true of

efforts by copyright owners to create artificial scarcity for their works by

periodically withdrawing them from public view. Disney is the most prominent

user of this strategy. For years, it would periodically re-release its films only at

certain times, hoping to lure a new generation of kids into the theaters.

Other

studios traditionally created “windows” during which the work is temporarily

unavailable while being transitioned from one revenue model to another.

Traditionally, for instance, movies would show in a first-run theater, then in a

“sub-run” discount theater, then perhaps on premium cable channels, then be

released on DVD, then syndicated to television.

More recently, services like

Hulu provided a weird hodgepodge of television shows, offering, not all the

episodes in a series, but only those that were old enough—but not too old.

100

That may well have been a profitable strategy. But it is one that should be

obsolete in a world where people have grown accustomed to having access to

published content when they want it. In the past, Disney could decide when it

wanted to sell DVDs of particular movies, but it couldn’t prevent the resale or

rental of those DVDs by others during its period of artificial scarcity. It shouldn’t

See Mahita Gajanan, These Are the Most Popular Netflix Shows and Movies—According

to Netflix, TIME (July 16, 2020, 1:09 PM), https://time.com/5697802/most-popular-shows-

movies-netflix/ (“Netflix says its new fantasy series, The Witcher, is on track to be its biggest

first season of a television series ever, with 76 million member households watching at least

two minutes of the show.”); David Renshaw, Is Rewatching Old TV Good for the Soul?, BBC

CULTURE (Apr. 27, 2021), https://www.bbc.com/culture/article/20210427-is-rewatching-old-

tv-good-for-the-soul [https://perma.cc/UE3V-25K5] (noting enduring popularity of both The

Office and The Sopranos, among other older shows).

See supra notes 57-58 and accompanying text (providing examples of Disney “Vault”

in action).

Edward Jay Epstein, Hollywood’s Death Spiral, SLATE (July 25, 2005, 2:48 PM),

https://slate.com/culture/2005/07/hollywood-s-death-spiral.html [https://perma.cc/83P3-

Z4WG] (“In the early 1980s, in order to avoid having new movies in theaters compete against

themselves in video, pay-per-view, pay TV, or free television, the studios set up a series of

insulated windows for each format.”).

See id.

100

Why Are There Only a Few Episodes of My Show Available?, HULU: HELP CENTER

(July 10, 2021), https://help.hulu.com/s/article/only-some-episodes [https://perma.cc/Z2MK-

XQ49].

1276 BOSTON UNIVERSITY LAW REVIEW [Vol. 101:1255

now be able to prevent access to that content altogether simply because the world

has moved to streaming services, so no one has DVDs to watch or rent.

This is a harder case under fair use doctrine, because Disney can tell a market

harm story to justify its withdrawal of content, and unlike most cases of

disappearing content, it is not withdrawing the content forever. Nonetheless, I

think users should be entitled to retain the access they had to published content

even during artificially created blackout periods. And if the copyright owner

won’t maintain access, others should be permitted to supply that content. As a

practical matter, small windows of unavailability are unlikely to provoke

copying or litigation as long as the work is in fact about to be released in a new

format. Take, for example, Christmas specials that come out every Christmas.

That doesn’t seem to me a case of withdrawal from the market at other times of

the year. But longer periods—indefinite unavailability or withdrawing a work

for a year or more—seem more problematic and may draw entry from those who

want to make the work accessible. That may not align with the contracts studios

wrote in the past. But there is little reason to need or want such versioning in the

modern world.

Changing the content. Sometimes copyright owners will want to replace old

content with new versions of that content. George Lucas edited Star Wars when

he released it on video to change the story and add some then-cutting-edge

virtual effects, for example.

101

Others may want to issue director’s cuts of

movies or the like. There’s nothing wrong with doing that. But when it is coupled

with the withdrawal of the original version from public view, those changes

become more problematic. The public should have a record of content in its

various forms. The copyright owner is free to promote the new form and

encourage people to use it. But when it substantively changes the content and

withdraws the old version, the world loses something.

102

Others should be free

to make that old version available if the copyright owner won’t, at least if the

content is passive rather than interactive.

103

That principle needs some limits—the decision to sell only the director’s cut

of Blade Runner shouldn’t necessarily justify direct commercial competition by

other editions. But libraries, academics, and other non-profit groups should be

able to preserve that content and make it available. And if there are substantial

differences between the old and new versions, private companies should be able

to fill the demand for the old version if the copyright owner won’t. I expect that

situation to be rare; most copyright owners will offer both old and new versions

101

See supra note 55 and accompanying text (noting difficulty of finding original, unedited

version of Star Wars today). Also, to gut one important scene in the movie, at least from the

perspective of Star Wars fans.

102

If there is no substantive change, but rather just remastering of existing content, the

103

On the complications of interactive multiplayer content, see infra notes 114-17 and

accompanying text.

2021] DISAPPEARING CONTENT 1277

if there is substantial demand for both. That is even more likely to be true if not

doing so would open the old version to copying by others.

Objectionable content. The stakes get even higher when the copyright owner

withdraws the content, not to replace it with a modified version, but because the

owner no longer wants the content available at all. The copyright owner may

have decided she doesn’t agree with what she once said. Perhaps a new owner—

a corporate buyer or an author’s children—has taken over the copyright and

wants it removed from public view. Or perhaps an older movie or book is now

recognized to be racist, sexist, or homophobic and the copyright owner doesn’t

want to face controversy.

104

Scientific journals may want to take down a paper

that has been retracted. While those desires are sometimes understandable, they

don’t justify retroactively wiping the public record clean. To the contrary, a

substantive desire to withdraw published content from the world actually offers

a good reason why a third party making that work available is in the public

interest. The public has a right to know what is out there even—perhaps

especially—if the copyright owner now wants to pretend it never existed.

An instructive example involves the copyright to Adolf Hitler’s Mein Kampf.

Hitler published the book in Germany.

105

In the 1930s, he published an English

translation in the United States that altered the work to tone down the anti-

Semitism and conceal many of his ambitions. Alan Cranston, an anti-fascist,

translated and published the entire book to demonstrate to Americans the full

threat Hitler posed.

106

Hitler’s publisher sued him for copyright infringement—

and won.

107

I think that result is wrong. Cranston performed a valuable public

service by making Hitler’s words clear and preventing him from toning them

down.

108

They certainly don’t

have to sell or promote the work. But if they decide not to make it available for

104

See Six Books Withdrawn, supra note 56. Disney decided not to stream its Song of the

South on Disney+ because of its racist content, for instance. Jesus Jiménez, Column on

‘Wokeness’ Ruining Disney World Experience Draws Backlash, N.Y. TIMES (Apr. 24, 2021),

https://www.nytimes.com/2021/04/24/business/disney-world-woke-column.html. Though

pretty much every TV show from before 1990 would disappear on that theory.

105

Wendi A. Maloney, Mein Kampf Infringer Aimed to Warn of Hitler Threat,

/201505%20CLore_May2015.pdf [https://perma.cc/42S6-D9S6].

106

See generally LORRAINE H. TONG, HITLER ON TRIAL: ALAN CRANSTON, MEIN KAMPF,

AND THE COURT OF WORLD OPINION (2017) (recounting Cranston’s work translating and

publishing Mein Kampf to expose Hitler’s true intent).

107

Houghton Mifflin Co. v. Stackpole Sons, Inc., 104 F.2d 306, 312 (2d Cir. 1939).

108

those who make recognized works of visual art in small editions. 17 U.S.C. § 106A. But it is

reasonable to expand that right to a general right to disavow association with content. Cf.

Mark A. Lemley, Rights of Attribution and Integrity in Online Communications, in REAL LAW

@ VIRTUAL SPACE: COMMUNICATION REGULATION IN CYBERSPACE 251, 256-58 (Susan J.

Drucker & Gary Gumpert eds., 1999) (arguing that copyright owners should have stronger

rights of attribution and nonattribution online).

1278 BOSTON UNIVERSITY LAW REVIEW [Vol. 101:1255

moral or political reasons, they shouldn’t have the power to stop others from

keeping access to the work alive, particularly if doing so allows the world to see

what the copyright owner once believed.

109

2. Legitimate Reasons to Make Content Disappear

While fair use should generally protect those seeking to keep once-public

content available, there are circumstances in which a copyright owner has a

legitimate reason to withdraw content from the public eye.

Security and updating. First, the old content may be broken, or even

dangerous. Software programs, for instance, are regularly updated with patches

to fix security vulnerabilities.

110

The publisher may reasonably worry that

someone who disseminates an out-of-date version of a computer program is

creating a cybersecurity risk.

111

That is particularly true if the software operates

online, so that the publisher may leave its own system vulnerable if it accepts

data from compromised older programs. But even if it isn’t regularly online, a

publisher may still decide that the legal and economic risks of supporting

insecure software are too great.

Cybersecurity is a legitimate reason to replace older versions with newer ones.

But even if there isn’t a security threat, software and games are frequently

updated to fix bugs.

112

Modern computer systems are so complicated that it is

virtually impossible to release software that is bug-free.

113

Replacing older,

buggy code with debugged code seems legitimate, and the fact that a copyright

owner releases updates designed to fix errors shouldn’t require it to keep offering

109

Here too the right might be more reasonably limited to academic uses and discussion

rather than commercial exploitation of the offensive work.

110

See About the Security Content of iOS 14.4 and iPadOS 14.4, APPLE (May 28, 2021),

https://support.apple.com/en-us/HT212146 [https://perma.cc/3576-EYYN]; Security Update

for Windows 10, Version 1607, 1703, 1709, 1803, 1809, 1903, 1909, Windows Server 2016

and Windows Server 2019: February 11, 2020, MICROSOFT,

https://support.microsoft.com/en-us/topic/security-update-for-windows-10-version-1607-

1703-1709-1803-1809-1903-1909-windows-server-2016-and-windows-server-2019-

february-11-2020-755ab061-817d-144b-e4de-2c4ee4f1d596 [https://perma.cc/W3H8-4JAX]

(last visited Sept. 1, 2021).

111

See Joe Symanovich, 5 Reasons Why General Software Updates and Patches Are

Important, NORTON (Jan. 23, 2021), https://us.norton.com/internetsecurity-how-to-the-

importance-of-general-software-updates-and-patches.html [https://perma.cc/9QWY-N8ND]

(“Software updates often include software patches. They cover the security holes to keep

hackers out.”).

112

See Megan Farokhmanesh, Cyberpunk 2077’s Latest Patch Fixes Hundreds of Bugs,

VERGE (Mar. 29, 2021, 2:01 PM), https://www.theverge.com/2021/3/29/22356546

/cyberpunk-2077-patch-1-2-bug-fixes-console-stadia; About iOS 14 Updates, APPLE (July 26,

2021), https://support.apple.com/en-us/HT211808 [https://perma.cc/X7A7-FJA8].

113

The Myth of “Bug Free” Software, BETA BREAKERS (Jan. 13, 2016),

https://www.betabreakers.com/the-myth-of-bug-free-software/ [https://perma.cc/7WLE-

QZNT] (“There is simply no such thing as bug free software.”).

2021] DISAPPEARING CONTENT 1279

older versions of the code on its site or permit third parties to copy those

versions.

Interactive content. Second, copyright owners may have good reason to

withdraw old content while issuing new content when the thing the copyright

owner wants to change is interactive rather than passively consumed. A

older versions available, because users might not be able to interact across

different versions. In that case, there is a stronger argument for replacing the

older version altogether so the copyright owner can provide an enhanced

experience without forking the game into two versions. Video games often

include downloadable extras, for instance, and are frequently updated with bug

fixes.

114

While the user of a single-player game might choose not to update the

game and instead choose to keep the original experience, online multiplayer

games can’t always handle players interacting with each other while running

different versions of the game.

115

So there is a good argument to allow video

game and other software updates to replace the original version. But books,

movies, and music don’t need a similar feature.

Two complications to updates of interconnected systems involve platform

compatibility and widespread demand for a previous platform. A significant

minority of World of Warcraft players, for instance, prefer the original version

without subsequent updates, to such an extent that they run their own

underground servers to allow users to play the original game.

116

There is a

legitimate question whether users should be allowed to run separate, free-

standing versions of obsolete game systems the copyright owner no longer

offers. I discuss this phenomenon in the context of game modifications (“mods”)

and obsolete platforms below.

117

Legal restrictions. Third, the copyright owner might be obligated to remove

the content because it violates someone else’s copyright. The Joan Crawford

movie Letty Lynton, for example, was pulled from public distribution because it

was enjoined after it was held to infringe the copyright in the play on which it

was based.

118

The plaintiff can still distribute the underlying play (and indeed it

114

See Downloadable Content (DLC), STEAMWORKS, https://partner.steamgames.com

/doc/store/application/dlc [https://perma.cc/ZN7A-LRPT] (last visited Sept. 1, 2021).

115

See Call of Duty: Modern Warfare Installation and Setup, ACTIVISION (Oct. 28, 2019),

https://support.activision.com/modern-warfare/articles/call-of-duty-modern-warfare-

installation-and-setup [https://perma.cc/6H3Y-CR2R] (stating that users can play single-

player mode, but not multiplayer, while they wait for update to install).

116

Morgan Park, Every WoW Classic Server: How to Pick the Realm for You, PC GAMER

(June 1, 2021), https://www.pcgamer.com/wow-classic-servers/ [https://perma.cc/Q6UC-

TZPJ].

117

See infra notes 137-40 and accompanying text.

118

Sheldon v. Metro-Goldwyn Pictures Corp., 309 U.S. 390, 409 (1940). It has not been

exhibited since, and is known in movie buff circles as the “lost Joan Crawford movie.”

DOUGLAS LAYCOCK & RICHARD L. HASEN, MODERN AMERICAN REMEDIES: CASES AND

MATERIALS 549 (5th ed. 2018).

1280 BOSTON UNIVERSITY LAW REVIEW [Vol. 101:1255

licensed a competing movie with Hedy Lamarr some years later), but the content

added by the defendants is no longer available. Copyright owners obviously

shouldn’t be required to make a work available if a court has ordered them not

to. Even if a court denies an injunction, they aren’t obligated to pay damages by

continuing to infringe on the original copyright.

119

A somewhat closer question is presented by unresolved claims of

infringement. Many people sue video and music publishers for copyright

infringement, and most of those suits are bogus. Indeed, any sufficiently

successful movie seems destined to attract suits from people claiming they came

up with the idea for the movie.

120

A copyright owner might reasonably fear

losing such a suit and decide to withdraw the work from publication as part of a

settlement. That too should be permissible, though there is a risk that copyright

owners will use bogus lawsuits as part of a strategy to withdraw a work for

impermissible reasons.

121

Another complication is that some works incorporate other works, and the

the classic documentary Eyes on the Prize included copyrighted material from

third parties but didn’t get rights to that material for uses that occurred more than

ten years after the documentary was released.

122

If the copyright owner cannot

rerelease a work without infringing on components included in that work,

presumably the fair user would have the same problem.

123

119

This problem isn’t limited to infringers. Copyright owners can terminate their licenses

after thirty-five years in some limited circumstances, and this has led to litigation and the

withdrawal of some works that were authorized when made but whose authorization was then

withdrawn. See, e.g., Stewart v. Abend, 495 U.S. 207, 227, 238 (1990) (holding that Alfred

Hitchcock movie Rear Window was subject to such a termination); David Nimmer & Peter S.

Menell, Sound Recordings, Works for Hire, and the Termination-of-Transfers Time Bomb, 49

J. COPYRIGHT SOC’Y U.S.A. 387, 388-98 (2002) (providing history behind Copyright Act and

its subsequent amendments relating to its provision of right to terminate transfers thirty-five

years after an assignment).

120

See, e.g., Litchfield v. Spielberg, 736 F.2d 1352, 1358 (9th Cir. 1984) (rejecting claim

that blockbuster movie E.T. The Extra Terrestrial was based on plaintiff’s musical play,

“Lokey from Maldemar”).

121

Until recently, this wasn’t much of a problem because copyright suits were brought

against works early in their life. Unfortunately, the Supreme Court abolished the doctrine of

laches in Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014), leading to a flood of

dubious lawsuits against old works. Still, most lawsuits are brought against works that are

making money (to paraphrase Willie Sutton, “that’s where the money is”), and publishers are

less likely to want to remove those works from the public eye.

122

I am indebted to Tony Reese for this example. See R. Anthony Reese, Preserving the

Unpublished Public Domain, in WORKING WITHIN THE BOUNDARIES OF INTELLECTUAL

PROPERTY: INNOVATION POLICY FOR THE KNOWLEDGE SOCIETY 55, 67 (Rochelle C. Dreyfuss,

Harry First & Diane L. Zimmerman eds., 2010).

123

This may be less common of a problem than it seems, both because fair use favors

transformative uses and because the underlying copyright owners are presumably objecting

2021] DISAPPEARING CONTENT 1281

One legal restriction that should not protect those who withdraw content from

operation of the fair use doctrine is a license purporting to restrict distribution of

the content. Unlike a claim of infringement by a third party, an agreement

between the copyright owner and a licensee shouldn’t result in no one having

the right to distribute the work. A significant fraction of content likely disappears

not because the creator wants to withdraw the work but because she granted an

exclusive license to a distribution platform like Netflix and that distributor then

stopped distributing the work. But “Netflix will make more money streaming

something else” isn’t a legitimate reason to deny the world access to the content.

That doesn’t mean that copyright owners can’t sign exclusive distribution

deals. They can and they will. But those distribution deals have to involve actual

distribution. If the distributor stops distributing, others should be free to step in

and keep the work available. Notably, that includes the copyright owner herself,

who under my proposal may effectively take back a work she has licensed if the

licensee is no longer distributing it.

124

Ephemeral content. Finally, some content—even content made public—is not

intended to be permanent. There is no right of public access to private letters,

internal corporate memoranda, etc., at least in normal circumstances.

125

But

there also is no right to permanent public access to works that are intended to be

ephemeral. Snaps and stories on social media, for instance, exist for a short

period of time and then disappear. Unrecorded theatrical, musical, or dance

performances may be public in the moment but aren’t meant to be preserved

to the continued use of the work, making it hard for them to credibly assert market harm from

that use. See Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1202-05 (2021) (holding that

Google’s use of Sun’s API to make Android mobile apps was transformative where Sun’s

API was created for desktop and laptop computers).

124

See also Martin Kretschmer & Rebecca Giblin, Getting Creators Paid: One More

Chance for Copyright Law, 43 EUR. INTELL. PROP. REV. 279 (2021) (discussing the “use it or

lose it” licensing rule under the article 22 of the EU’s Digital Single Market law). More on

what happens to other fair users if an author takes back their rights infra notes 151-55 and

accompanying text.

125

Works that are never made available to the public are outside the scope of my analysis.

They may be withheld for good reasons or bad, but because they were never offered to the

public, the fair use analysis differs. See, e.g., Peter Letterese & Assocs., Inc. v. World Inst. of

Scientology Enters., 533 F.3d 1287, 1313-14 (11th Cir. 2008). The second fair use factor gives

Publishers, Inc. v. Nation Enters., 471 U.S. 539, 554 (1985) (concluding “that the unpublished

nature of a work is ‘[a] key, though not necessarily determinative, factor’ tending to negate a

defense of fair use” (quoting S. Rep. No. 94-473, at 64 (1975))); Salinger v. Random House,

Inc., 811 F.2d 90, 96 (2d Cir. 1987) (applying Harper & Row to “place special emphasis on

the unpublished nature of Salinger’s letters” in a fair use analysis). That control is not

absolute, however. 17 U.S.C. § 107 (“The fact that a work is unpublished shall not itself bar

a finding of fair use if such finding is made upon consideration of all the above factors.”). For

discussion of purely private copyrighted works, see Balganesh, supra note 63; and Goldman

& Silbey, supra note 60.

1282 BOSTON UNIVERSITY LAW REVIEW [Vol. 101:1255

forever. And some works of art deliberately degrade over time.

126

owners may create a work intending that it lapse over time. When they do, the

public doesn’t lose out by having it disappear as a result of a technological

change.

3. Where to Get a Copy

Even if making disappeared content available is legal under the fair use

doctrine, that doesn’t guarantee that anyone actually has a copy they can make

available. As I noted in Part I, as the world moves to streaming it may become

harder and harder to find those copies unless you are the copyright owner.

127

Indeed, the problem is worse than it appears; even content creators themselves

don’t always save their work so that it can be ported to new platforms,

128

and

they sometimes rely on pirated copies to restore and update their own works.

129

Declaring the distribution of those works to be fair use will help, because it

means that anyone who does have a copy can share it. And archival sites like

Google Books or the Internet Archive may put out a call for such copies. They

should be permitted to make disappeared content available to users in its

entirety. But there is another promising source of disappeared content: the

130

The Copyright Office requires that anyone who registers

their copyright (and most U.S. authors and publishers do) deposit a copy of that

126

Subversive artist and prankster Banksy once rigged a painting to automatically shred

itself soon after selling at auction for over £1 million. Chris Johnston, Banksy Auction Stunt

Leaves Art World in Shreds, GUARDIAN (Oct. 6, 2018, 4:11 AM),

https://www.theguardian.com/artanddesign/2018/oct/06/banksy-sothebys-auction-prank-

leaves-art-world-in-shreds-girl-with-balloon. Meanwhile, satirical sculptor Maurizio Cattelan

taped a banana to a wall to create his famous Comedian sculpture. Sarah Cascone, Maurizio

Cattelan Is Taping Bananas to a Wall at Art Basel Miami Beach and Selling Them for

$120,000 Each, ARTNET NEWS (Dec. 4, 2019), https://news.artnet.com/market/maurizio-

cattelan-banana-art-basel-miami-beach-1722516 [https://perma.cc/LH4P-FH4S].

127

See supra Part I.

128

See R. Anthony Reese, Super Bowl I, Jazz Radio, and The Glass Menagerie: Copyright,

Preservation, and Private Copies, 51 AKRON L. REV. 1025, 1033-40 (2017) (discussing

problem of lost works not preserved by copyright owners).

129

See Nathan Grayson, The Crazy Journey to Save Grim Fandango, KOTAKU (Nov. 10,

2014, 2:00 PM), https://www.kotaku.com.au/2014/11/the-crazy-journey-to-save-grim-

fandango/ [https://perma.cc/5MR2-N7QH] (discussing efforts to resurrect game that “has

been out of commission for more than a decade. In the intervening time, it’s become harder

and harder to even get your hands on a copy of the game—let alone get it to work on a modern

operating system.”). As the project lead put it, “[i]t’s frustrating because if we had just saved

the right files, it’d be so much easier.” Id. The game developers themselves ended up using

pirated copies of the game, as well as source code that developers had taken home without

permission. Id.

130

I am indebted to Ryan Vacca and Jacob Goldin for this suggestion. For a proposal to

expand the deposit copy requirement, see R. Anthony Reese, What Copyright Owes the

Future, 50 HOUS. L. REV. 287, 312-13 (2012).

2021] DISAPPEARING CONTENT 1283

work.

131

The Copyright Office will release that copy for some purposes,

including where there is litigation over a work.

132

But the office could change

its regulations to provide a copy of a deposited work to anyone who certifies that

the work is out of print and is no longer being exploited. This won’t solve all

access problems; not everyone registers their work, and deposits for computer

software don’t include functioning code.

133

But it would be a significant step

towards availability of a copy.

4. Disappearing Technology Platforms

While I have focused on the problem of content disappearing because of the

shift to streaming and cloud-based remote access, content can also “disappear”

not because consumers don’t have a copy of it but because they have no effective

way to access that copy. Technology platforms change regularly, and they tend

to be backwards compatible only for a limited period of time. If you’ve got a

computer program on a floppy disk (either the kinds that were actually floppy or

the ones that weren’t), music on an eight-track tape, a Betamax videotape, or a

Sega Genesis game cartridge, good luck getting access to it.

134

The content

hasn’t disappeared—consumers still have relatively durable copies—but as a

practical matter no one can access it. This problem isn’t limited to video games.

Maybe you managed to hold onto a very old computer or a Betamax, but you

probably didn’t. And even if you did, it likely won’t connect to any modern data

storage system.

135

The same may be true of an early Kindle. Andy Warhol, for

131

17 U.S.C. § 407.

132

See Atari Games Corp. v. Nintendo of Am. Inc., 975 F.2d 832, 841 (Fed. Cir. 1992)

(discussing regulations and their misuse in that case).

133

U.S. COPYRIGHT OFF., COPYRIGHT OFFICE CIRCULAR NO. 61: COPYRIGHT REGISTRATION

[https://perma.cc/D8Q5-4ZQ2] (“The copyright law does not protect the functional aspects of

a computer program, such as the program’s algorithms, formatting, functions, logic, or system

design.”).

134

This has been a worry since the last millennium, when some were concerned that early

digital text would not be preserved. See Jeff Rothenberg, Ensuring the Longevity of Digital

Information, 26 INT’L J. LEGAL INFO. 1, 1 (1998), https://www.cambridge.org

/core/journals/international-journal-of-legal-information/article/abs/ensuring-the-longevity-

of-digital-information/E79AD8F403C068701B09EE018BE4AA72 [https://perma.cc/6JZ8-

6KE5]. The move to the Internet made obsolete formats less of a problem for text, because it

was relatively easy to store and replicate it online. This remains a bigger problem for video

games and other large files, however.

135

There are companies that will up-convert some kinds of content from old media, but

they generally focus on home movies and other personally generated content. See, e.g., VHS

to Digitial & DVD Service, LEGACYBOX, https://legacybox.com/products/vhs-conversion

(last visited Sept. 1, 2020). William Gibson has a science-fiction book set decades in the future

in which a protagonist collects and preserves working copies of old hardware so people can

find their content. WILLIAM GIBSON, IDORU (1996).

1284 BOSTON UNIVERSITY LAW REVIEW [Vol. 101:1255

instance, did early computer art for a Commodore Amiga, but it was lost for

years until an archivist managed to recover it.

136

A right to access published content, then, may turn out to require some sort

of right to port that content to modern platforms. Sometimes that can be done by

finding an old machine and a way to copy the content to a new machine. In other

cases, however, accessing old content may effectively involve recreating it.

There is a vibrant underground market for video game emulators—software that

emulates an old video game on a modern platform.

137

Courts have treated

copying to permit cross-platform interoperability as fair use, even when the

resulting product competes directly with the copyright owner’s works.

138

If, as I

suggested in Part II.A, fair use permits defendants to copy out-of-print content,

and it also permits porting of published content to new platforms, it ought to

permit people to adapt that out-of-print content so it can be effectively accessed

using modern systems.

139

Emulating out-of-print video games on new platforms

should be legal. If it isn’t, the fair use right to share those games is practically

worthless. But copyright owners fight it vigorously.

140

136

Whereupon, this being 2021, it was promptly turned into an NFT. Sarah Cascone, The

Warhol Foundation Is Auctioning Off the Artist’s Computer-Based Works as NFTs. An

Archivist Who Uncovered Them Is Outraged, ARTNET NEWS (May 21, 2021),

https://news.artnet.com/market/andy-warhol-nft-christies-1971474 [https://perma.cc/JK4S-

63PB].

137

See Jason Cohen, The Best Emulators for Playing Retro Games on Modern Devices,

PCMAG (Aug. 21, 2020), https://www.pcmag.com/how-to/the-best-emulators-for-playing-

retro-games-on-modern-devices [https://perma.cc/AE54-TS7U].

138

See Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1527-28 (9th Cir. 1992) (finding

Accolade’s reverse engineering of software in Sega’s video games to make their own games

compatible with Sega game console to be fair use of Sega’s software); Sony Comput. Ent.,

Inc. v. Connectix Corp., 203 F.3d 596, 608 (9th Cir. 2000) (holding that making copies of

platform was fair use).

139

See Joseph Godfrey, Super Mario Decompiled, 12 HASTINGS SCI. & TECH. L.J. 1, 11

(2020) (suggesting that “it [is] likely that reconstructing and publicly releasing source code

would be considered a fair use”). Some have suggested that estoppel or implied license might

permit such a use. See Andrew F. Thomas, Modding the Implied License Doctrine: An

Estoppel License Framework for Video Game Mods, 47 AIPLA Q.J. 545, 561-76 (2019). But

the fact that companies resist emulation makes it hard to apply those doctrines to obsolete

technology.

140

See, e.g., How to Report Potential Infringements of Nintendo Products, NINTENDO:

CUSTOMER SUPPORT, https://en-americas-support.nintendo.com/app/answers/detail/a_id

/50131/kw/emulator [https://perma.cc/5MRQ-BWWL] (last visited Sept. 1, 2021) (detailing

how to report potential infringements of Nintendo products such as “ROM sites, emulators,

Game Copiers, Counterfeit manufacturing, or other illegal activities”). For instance, Nintendo

sent takedown notices in 2020 to an individual who ported Super Mario 64, a game first

released in 1996 and made for the now-obsolete Nintendo 64 platform, to PC. Andy Robinson,

Nintendo Takes Action Against Mario 64 PC Port, VIDEO GAMES CHRON. (May 8, 2020, 3:19

PM), https://www.videogameschronicle.com/news/nintendo-takes-action-against-mario-64-

2021] DISAPPEARING CONTENT 1285

One recent decision found that porting a body of copyrighted work from one

platform to another was fair use as a matter of law. In Monsarrat v. Newman,

141

the court held that the heads of a LiveJournal discussion forum could copy all

the historical content of that forum in order to move the discussion off

LiveJournal to a different platform.

142

It noted that while the copyrighted

material was copied in full, “a full reproduction is consistent with historical and

preservationist purposes.”

143

5. Gaming the System

There is some risk that both copyright owners and defendants will try to evade

or game the right to access out-of-print content. Copyright owners might try to

avoid having a work declared out-of-print while effectively withdrawing it from

public access for reasons I rejected above as impermissible. For instance, they

might offer the copyrighted work for an extremely high price or offer it in places

or subject to conditions that make it practically inaccessible but allow them to

claim that it is still technically in print. Trademark owners have engaged in

similar token uses in an effort to avoid being deemed to have abandoned their

marks.

144

On the flip side, accused infringers might try to game the right to access

content by claiming that remastering or other trivial edition changes cause the

previous edition to go out-of-print, allowing them to copy a version of a work

pc-port/ [https://perma.cc/NA5A-UVVY]. For a discussion of how copyright owners have

targeted emulators, see, for example, Jessica A. Magaldi, Jonathan S. Sales & Wade Davis,

All’s Fair in Love and War but Nothing’s Fair Use on YouTube: How YouTube Policies

Favor Copyright Owners and Hinder Legal Fair Use 11-12 (Apr. 6, 2020) (unpublished

manuscript) (available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3569760).

Things get more complicated if the content is encrypted, because copyright owners may

invoke 17 U.S.C. § 1201 of the Digital Millennium Copyright Act to prevent the unlocking

of that content. Thus, even if I could find a DVD of El Ministerio del Tiempo, it is likely to

be region-coded for Europe, and sharing that work with the public requires not only making

a copy but also bypassing the copy control system. Courts have disagreed over whether a

desire to make fair use of the underlying work justifies breaking the encryption in that work.

Compare Chamberlain Grp., Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1202-03 (Fed. Cir.

2004) (yes), with MDY Indus., LLC v. Blizzard Ent., Inc., 629 F.3d 928, 950-52 (9th Cir.

2010) (no). But that problem may be less significant in practice, because many people who

will want to make fair use of a work that has disappeared will already have an unlocked copy

of the work. If they don’t, they may not be able to get a copy of any sort, locked or unlocked.

141

No. 20-cv-10810, 2021 WL 217362 (D. Mass. Jan. 21, 2021).

142

Id. at *2.

143

Id. at *3.

144

See Christopher T. Micheletti, Preventing Loss of Trademark Rights: Quantitative and

Qualitative Assessments of “Use” and Their Impact on Abandonment Determinations, 94

TRADEMARK REP. 634, 634-35 (2004); cf. Camilla A. Hrdy & Mark A. Lemley, Abandoning

Trade Secrets, 73 STAN. L. REV. 1, 42-51 (2021) (arguing that trade secrets should be free for

others to use if their owner abandons them).

1286 BOSTON UNIVERSITY LAW REVIEW [Vol. 101:1255

that doesn’t substantially differ from the work the copyright owner is still selling

and profiting from.

Neither form of gaming should be permitted. The good news is that the fair

use doctrine, because it is multifactored and fact-specific, lends itself well to a

detailed evaluation of whether content is really out of print and not justified by

one of the exceptions noted above. There will naturally be hard cases at the

margins. But none of them should distract from the fundamental public right to

have continued access to once-published content.

A final problem comes, not from copyright, but from the supplementation of

fair use before sending Digital Millennium Copyright Act (“DMCA”) takedown

notices.

145

But relatively few YouTube takedowns, for example, come as a result

of copyright owner complaints.

146

Most are processed through YouTube’s

Content ID system.

147

If Content ID flags a published work as copyrighted, it

will automatically take the work down even if the copyright owner isn’t making

the work available and so it should be fair use.

148

So we may need either a

registry of out-of-print works

149

or for automated filtering systems to update to

exclude out-of-print works from their copyright-driven filtration systems.

150

6. Reappearing Content

What happens if content disappears and then later reappears? I discussed

above a copyright owner’s efforts to withdraw a work for a limited time

period.

151

I have in mind here something different—the copyright owner who

“rediscovers” a lost work after others are already making fair use of it. True

rediscovery will be rare; after all, the work is not truly lost if others have access

145

See Lenz v. Universal Music Corp., 801 F.3d 1126, 1133 (9th Cir. 2015).

146

Lauren D. Shinn, Note, Youtube’s Content ID as a Case Study of Private Copyright

Enforcement Systems, 43 AIPLA Q.J. 359, 363-64, 370-72 (2015).

147

The Difference Between Copyright Takedowns and Content ID Claims, YOUTUBE

HELP, https://support.google.com/youtube/answer/7002106?hl=en [https://perma.cc/Y9S5-

BTX9] (last visited Sept. 1, 2021) (“Since January 2014, Content ID claims have

outnumbered copyright takedowns by more than 50 to 1.”).

148

Leron Solomon, Note, Fair Users or Content Abusers? The Automatic Flagging of

Non-Infringing Videos by Content ID on YouTube, 44 HOFSTRA L. REV. 237, 253-54 (2015);

Taylor B. Bartholomew, Note, The Death of Fair Use in Cyberspace: YouTube and the

Problem with Content ID, 13 DUKE L. & TECH. REV. 66, 68 (2015).

149

The Berne Convention prevents member countries from requiring registration as a

condition of copyright protection. Berne Convention for the Protection of Literary and Artistic

Works, Sept. 9, 1886, as revised at Stockholm on July 14, 1967, 25 U.S.T. 1341, 828 U.N.T.S.

221. But it doesn’t prevent creating a registry of works that are no longer being exploited. Id.

150

Platforms aren’t required to offer works by fair users. But systems like ContentID are

designed to weed out copyright infringement. How Content ID Works, YOUTUBE HELP,

https://support.google.com/youtube/answer/2797370?hl=en [https://perma.cc/E5CF-46NB]

(last visited Sept. 1, 2021). It makes little sense to apply them to content that is not infringing.

151

See supra note 97 and accompanying text.

2021] DISAPPEARING CONTENT 1287

to it and are sharing it under the fair use doctrine. More likely is what we might

call “opportunistic rediscovery.” A copyright owner who has abandoned a work

because it didn’t seem profitable may discover that people still want the work

once someone else releases it under the fair use approach I outlined above.

152

they may try to take the work back from an exclusive licensee who has stopped

distributing the work under the very fair use theory I offer here.

The copyright owner surely has the legal right to start back up selling or

licensing the work at that point. Even if she has exclusively licensed it to

someone who stopped distributing it, she should have the same right to make

fair use of her own disappeared content that anyone else would.

A somewhat harder question is what should happen to the third-party fair user.

It might seem unfair to say the fair use has to stop once the copyright owner is

back in the game.

153

But I think the logic of fair use based on disappearing

content requires it. The copyright owner is still the owner, assuming they have

not gone through the difficult process of expressly abandoning the work.

154

And

once they are selling the work again, the independent user is directly competing

with them by providing the very same work. That’s hard to justify under fair use.

The right to restore disappearing content must end when the copyright owner

has brought the work back to life.

That said, the use was fair at the time. The independent user shouldn’t face

liability for conduct that was legal (and indeed likely caused the copyright owner

to bring the work back). And the law should allow her a reasonable time to wind

down operations and sell off inventory without fear of legal liability, just as the

and cut off the rights of intervening users.

155

152

One example involves the video game Age of Empires II, which was released in 1999.

Age of Empires II: Definitive Edition, STEAM, https://store.steampowered.com

/app/813780/Age_of_Empires_II_Definitive_Edition/ [https://perma.cc/HN7M-M5JU] (last

visited Sept. 1, 2021) (noting that 2019 Definitive Edition release “celebrates the 20th

anniversary of” original game). Like most games, it had a good run for a couple of years but

was gradually eclipsed by newer games. But it was rediscovered more than a decade later

after a fan-developed expansion grew sufficiently popular that the game was updated and

released on Steam. Katie Williams, After 14 Years, an Age of Empires 2 Fan Mod Becomes

an Official Expansion, PCGAMER (Aug. 19, 2013), https://www.pcgamer.com/after-14-years-

an-aoe2-fan-mod-becomes-an-official-expansion/ [https://perma.cc/Z96P-QXWM].

153

Gideon Parchomovksy and Abraham Bell make a strong case that fair use, once

established, should become a vested right. Abraham Bell & Gideon Parchomovsky,

Propertizing Fair Use, 107 VA. L. REV. (forthcoming 2021) (manuscript at 28-33) (available

at https://scholarship.law.upenn.edu/faculty_scholarship/2250). But even if that is generally

true, I don’t think it should be true when the only reason the use is fair in the first place is

because the copyright owner isn’t exploiting the work.

154

On abandonment of copyright, see generally Dave Fagundes & Aaron Perzanowski,

155

17 U.S.C. § 104(A).

1288 BOSTON UNIVERSITY LAW REVIEW [Vol. 101:1255

CONCLUSION

One of the great advantages of digital content has been that for the last forty

years, people have had access to whatever content they want whenever they

wanted it. That is starting to change. We’re moving backwards. Content is

disappearing—not just becoming available only in limited times or

circumstances, but becoming entirely unavailable.

It doesn’t need to be that way. It is now cheap and easy enough to make all

content available. If the copyright owner can’t or won’t continue to provide a

published work, others should be permitted to pick up the slack. Fair use should

encompass a right of access to published content. That right, like all of fair use,

ought to have limits and exceptions. But a basic right to continued access to

published works is consistent with the fundamental purposes of copyright.

In the past we might have aspired to a world in which all the works of history

were available forever. That’s now an achievable goal. The dead hand control