Away Music Copyrights:
Does Compulsory Licensing of Music on the Internet Violate the Fifth
Amendments Takings Clause?
By Laurie Messerly
Edited by Renee Giachino
recent years, music lovers have discovered vast access to free music
on the Internet. This includes not only free listening, but also
free downloading of their favorite songs and free copying of choice
music. Companies such as Napster gained almost instant notoriety
because they provided users with the ability to trade or share copies
of sound recordings through centralized file sharing. However, the
Internet file sharing of often-unlicensed sound recordings has many
in the music industry seeing red. According to the copyright holders
of these sound recordings, file-sharing services, such as Napster,
are promoting widespread "piracy."
distribution of music over the Internet often includes trading,
sharing and downloading music that is subject to one or more copyrights,
which makes it the property of others. The primary question is how
to compensate music copyright holders for the use of their copyrighted
works on the Internet. Traditionally, the copyright holders receive
royalty payments for use or distribution of their works through
voluntary license arrangements or compulsory statutory licensing
fees. But these traditional methods of paying royalties to the copyright
holders are increasingly being destroyed by "free" public
distribution of music over the Internet.
copyright owners, joined by the record labels and others in the
music industry, have understandably stormed our courts with claims
of copyright infringement, demanding compensation for the delivery
of downloaded music from the Internet. Copyright is a specific intellectual
property right protected by the United States Constitution. Article
I, section 8 empowers Congress to protect authors and inventors
against unauthorized use of their copyrighted works by others. Such
copyright protection extends to copyright holders in the music industry
(songwriters, music publishers, and record companies) from the infringing
use of their works by others.
in part by the arrogance of the "Napsters" of the World
Wide Web, major record companies and music writers generally have
been unwilling to negotiate with Internet "pirates" over
copyright infringement issues. This has led to a battle cry from
advocates of digital distribution that it is time for Congress to
impose yet another statutory royalty payment scheme.
licensing of music is a statutory royalty payment scheme for use
of copyrighted musical material. The license is "compulsory"
because it allows unauthorized use of copyrighted material, so long
as the "user" pays the required statutory fees. Section
115 of the Copyright Act1 provides
that once a song has been recorded and publicly distributed, the
publisher is required to license the song, in exchange for a fee,
to anyone who wants to record and distribute the song. Organizations
and trade associations have been administering these statutory license
fees for music publishers.2
licensing takes away one of the copyright holders rights;
namely their right to exclude others from use. Property rights are
protected by the Fifth Amendment to the U.S. Constitution, which
prohibits the government from taking private property for public
use without just compensation. Such protection is afforded to intellectual
property (copyright, patents, and trade secrets) as well as real
article argues that it violates the Fifth Amendment Takings Clause
for Congress to require music copyright holders to allow unauthorized
use of their material on the Internet and to force them to accept
licensing fees as established through a compulsory licensing arrangement.
Compulsory licenses take away control of copyright holders; a copyright
holder has no right to refuse, restrict, or in any way interfere
with a licensees enjoyment of applicable statutory rights
under compulsory licensing. Congress attempt to make music
more easily available over the Internet through compulsory licensing
would have the effect of "taking" away the copyright protections
that copyright holders have come to expect from Congressional action.
the elements of a taking have been satisfied, the Takings Clause
requires the government to pay the property owner just compensation.
But in light of the unique quality of digital transmissions4
via the Internet, allowing for worldwide distribution of pirated
materials in near perfect quality, it is difficult, if not impossible,
to easily determine just compensation. Although this does not mean
that ultimately a fair market value cannot be determined, this article
argues that the arbitrariness that will likely result from statutory
royalty schemes should not trump the marketplace solutions proffered
by the industry. Multiple technologies exist that meet the polar
objectives of the copyright laws: to promote widespread dissemination
of original creative works while maintaining copyright integrity.
This article concludes that government intervention should be avoided
as it discourages private negotiation and inhibits the development
of marketplace solutions. This article is intended to serve as a
starting point and does not include analysis on many other relevant
issues such as free speech, due process, the defense of fair use,
numerous federal5and state laws, and
U.S. international copyright treaty obligations.
Brief Look at Copyright Law
I, section 8 of the United States Constitution grants to Congress
the authority to establish copyright protection for authors and
inventors. Pursuant to this authority, Congress enacted the Copyright
Act of 1976 (the "Copyright Act"),6
which protects authors of creative works against the infringement
of those works by others. The Copyright Act provided five basic
exclusive rights to the owners of the copyright: (1) reproduction
of the work in copies or records; (2) the preparation of derivative
works based on the original work; (3) distribution of copies or
phonorecords of the work to the public by sale or other transfers,
or by rental, lease, or lending; (4) the public performance of the
work; and (5) the public display of the work.7
There are two types of copyrights for a recording of musical work:
the "musical work" copyright and the "sound recording"
copyright. Musical work copyright protects the songwriter and publisher
of the music and lyrics of the songs. Sound recording copyright
protects the performer of a recording of a work. Radio stations
traditionally only paid a royalty for the musical work copyright
in a song.8
Digital Performance Right in Sound Recordings Act of 1995
Act was amended in 1995 by the Digital Performance Right in Sound
Recordings Act ("DPRSRA")9,
essentially to prevent "pirates" from exploiting the
Internet. DPRSRA grants copyright holders a sixth exclusive
right: to receive royalties for the digital audio transmission
of sound recordings for which they hold a copyright. Before DPRSRA,
only songwriters and publishers were paid royalties when their
music was broadcast to the public (i.e. when their songs were
played in a restaurant or on the radio). Record companies did
not have any rights in the public performance of their sound recordings.
The DPRSRA specifically addressed broadcast transmissions, subscription
transmissions and on-demand transmissions. Additionally, DPRSRA
created an exemption for digital broadcasts (i.e. transmissions
by FCC-licensed radio stations) and a statutory license for certain
"non-interactive" subscription transmissions (i.e. transmissions
not made "on demand" in response to a specific request
of a recipient.10
Millennium Copyright Act of 1998
several entities began broadcasting digital music over
the Internet, which became known as webcasting. This transmission
did not fall into any of the DPRSRA categories. Congress responded
by adopting the Digital Millennium Copyright Act of 1998 ("DMCA"),11
which reinforced current copyright law with provisions agreed
to in international treaties on worldwide copyright protection,
and expanded the statutory license for subscription transmissions
to include non-interactive webcasting. According to the
Recording Industry Association of America (RIAA), the primary
purpose of non-interactive webcasters is to provide audio or entertainment
programming and not to sell or promote particular products or
services. Non-interactive webcasters (i.e. Spinner.com and Broadcast.com)
must obtain a statutory license from the record company to "perform"
the sound recording for its users.
DMCA requires that industry members agree to a statutory rate, otherwise
an arbitration panel will determine the royalty rate at fair market
value. However, any uses of sound recordings that fall outside the
scope of the non-interactive criteria in the DMCA will not qualify
for statutory license (i.e. webcast services where a listener can
request specific songs). These "interactive" online music
services must negotiate a license individually with the appropriate
record label.12 Entities such as Napster
would appear to fall into this latter category of online music providers
since they allow the user to select specific songs to hear. Thus
they are not entitled to benefit from any statutory royalty scheme
under current copyright laws, but must negotiate with record labels
for the rights to perform songs.
music providers, such as Napster, favor another amendment to the
Copyright Act, extending compulsory licensing to interactive online
music providers. Statutory fees benefit the music service provider
by generally setting lower rates than if freely negotiated.13
Record companies, on the other hand, are opposed to this possibility,
since they lose their ability to control their intellectual property
right and to negotiate royalties, thus suffering significant financial
A & M Records, Inc. v. Napster, Inc., the Ninth Circuit
Court of Appeals denied Napsters request for imposing a compulsory
royalty payment schedule, because it would have given Napster an
"easy out" of the case.14
Compulsory licensing would have given Napster the freedom to choose
to both continue and pay royalties, or to shut down. Music copyright
holders would have been forced to do business with a company that
profited from the unauthorized use of intellectual properties, and
would have lost the power to control their own intellectual property
by not being allowed the choice of whether to do business with Napster.
Finally, if these copyright holders decided they wanted to do business
with Napster, compulsory royalties would have taken away any ability
to negotiate the terms of a contractual agreement.15
Clearly the debate is still being waged over how copyright holders
will be justly compensated by Internet music providers for the use
of their copyrighted musical works on the Internet.
Takings Clause of the United States Constitution states in part
that private property may not "be taken for public use, without
just compensation."16 To determine
if compulsory licensing of music on the Internet is a taking, four
questions must be addressed: (1) Is an existing copyright a property
interest protected by the Fifth Amendment? (2) If so, does compulsory
licensing of copyrighted music for use on the Internet effect a
taking of that property interest? (3) If there is a taking, is it
a taking for a public use? (4) If there is a taking for a public
use, does compulsory licensing adequately provide for just compensation?17
Is an existing copyright a property interest protected by the
Court decisions regarding violations of the Takings Clause involve
real, as opposed to intangible, property. However, the Court has
held that intangible property can have many of the same characteristics
of more traditional forms of property (i.e. trade secrets, patents,
contracts, liens), thus concluding that some kinds of intangible
property are the kind of property which is constitutionally protected
in the Takings Clause.18 In addition
to trade secrets and patents, copyrights and trademarks are regarded
as intellectual property. Like trade secrets, copyrights are freely
to exclude has traditionally been a key feature of common law
property. The Court has repeatedly described the right to exclude
others as one of the most essential rights of property and a fundamental
element of property rights.19 Justice
Rehnquist noted in Kaiser Aetna v. United States that the
right to exclude others is generally "one of the most essential
sticks in the bundle of rights that are commonly characterized
as property."20 Years later,
Justice Scalia cited this quotation when he noted that "[t]he
hallmark of a protected property interest is the right to exclude
others."21 Through the Copyright
Act, Congress has granted to copyright holders the right to exclude
others from the infringing use of their copyrighted works, subject
to public "easements" like fair use. This right to exclude,
together with other features, including free assignability, leads
to the conclusion that copyright should be an intellectual property
right protected by the Fifth Amendment Takings Clause.
Does compulsory licensing of copyrighted music for use on the
Internet effect a "taking" of that property interest?
from copyright as a property interest protected by the Fifth Amendment,
the issue turns to whether compulsory licensing constitutes a
taking. The Supreme Court has generally been unable to establish
a set formula for determining when justice and fairness mandate
that economic injuries caused by governmental action must be considered
a taking, requiring just compensation. The inquiry into whether
a taking has occurred is essentially an ad hoc, factual inquiry
and specific to the circumstances. Takings are usually found to
be a "takings per se" or a regulatory taking.
has found a takings per se when (a) the government action authorizes
a permanent physical occupation/invasion of ones property
(or regulation authorizing a physical occupation) or (b) the governments
regulation of ones private property deprives all use of
value of property or does not substantially advance legitimate
state interests. When a taking is not a takings per se, the Court
generally uses the three factor analysis from Penn Central
Transp. Co. v. New York City to determine if the government
action goes beyond permissible regulation and effects a regulatory
taking, requiring just compensation. Here, we will examine both
Takings Per Se
v. Teleprompter Manhattan CATV Corp, the Supreme Court
held that a New York City law authorizing a cable company
to install cables on private rental property constituted a
taking, requiring just compensation. This permanent physical
occupation destroyed the owners rights to exclude others
from using the property. The power to exclude has traditionally
been considered one of the most treasured strands in an owner's
bundle of property rights. A property owner suffers a special
kind of harm when a stranger invades and occupies the
owners property. However, the size of the area permanently
occupied is not a factor in determining constitutional protection
of private property rights. Such an invasion is more severe
than a regulation of the use of property, since the
owner may have no control over the timing, extent, or nature
of the invasion. A permanent physical occupation is invariably
not exempt from the Takings Clause. On the other hand, when
a physical invasion is just short of being a permanent occupation
(hence a regulatory taking), courts must do a Penn Central
balancing test analysis.
licensing of music on the Internet destroys the copyright
holders right to exclude others from using the copyrighted
material. The government sets a royalty rate, the payment
of which entitles the licensee to use the work. Users need
only to pay the required statutory fee, fixed for all users.
It is a license, unauthorized by the copyright holder, for
any and all to use copyrighted material. This is a taking
of the copyright holders right to exclude, one of the
basic exclusive rights granted to the copyright holder. Arguably
this is similar to a stranger invading and occupying (using)
the owners property without permission from the property
to the situation in Loretto where the cable installation
did not destroy all of the owners use of the property,
but rather destroyed all of the use of that portion of the
property being occupied by the cable, compulsory licensing
of music on the Internet permanently destroys all of that
particular use of the copyright and the copyright holders
right to exclude. What could be closer to a permanent physical
occupation? As such, a strong argument can be made that compulsory
licensing is a permanent occupation/invasion of copyright,
which is a taking per se, requiring just compensation.
regulation of private property generally prohibits or restricts
particular uses of the property (laws prohibiting using property
for brickyard business, manufacturing carbon black, livery stables,
liquor store, excavating). Physical occupations, by contrast,
do not merely restrict use of the property, but actually destroy
the owners right to possess, use, dispose, and exclude,
thus constituting a categorical taking requiring just compensation.
Because compulsory licensing destroys the copyright holders
right to exclude others from use of his property it should be
regarded as a taking per se, thus requiring just compensation.
A more likely
reading, however, would be that compulsory licensing is a regulation
restricting the copyright use, rather than permanently
occupying or invading the copyright holders use of their
copyrighted material on the Internet. In the absence of a takings
per se, a regulatory taking analysis is appropriate.
Court established in Penn Central that where the government
action interferes with the owners use or enjoyment of
her property (not a physical invasion), the court will consider
three factors to determine whether a government action effects
a regulatory taking: the character of the government action,
its economic impact, and its interference with reasonable investment-backed
expectation. A significant number of cases deal with this third
factor in determining if a regulation is ultimately a taking.
Yet, the Supreme Court's ad hoc and confusing application of
the balancing test makes it rather hard to predict when a government
regulation will constitute a taking requiring just compensation.
the Supreme Court held in Ruckelshaus v. Monsanto that
a statute mandating disclosure of trade secrets (intellectual
property) was a regulatory taking requiring just compensation.
Justice Blackmun used the reasonable investment-backed expectation
theory to analyze the taking of this type of intellectual property
based on Monsantos ability to control the use and dissemination
of the trade secrets it possessed. The right to exclude others
is crucial to the very definition of the property interest in
trade secrets. Once the trade secret is disclosed to others,
or others are allowed to use the data, the holder of the trade
secret has lost his property interest in the data. The fact
that Monsanto was able to retain some usefulness with regards
to the data was found to be irrelevant in determining the economic
impact of the regulatory action on Monsantos property
right. "The economic value of that property right lies
in the competitive advantage over others that Monsanto enjoys
by virtue of its exclusive access to the data, and disclosure
or use by others of the data would destroy that competitive
edge." Loss in market value of the data because of the
disclosure of the trade secrets was factored into the economic
analysis. Key to the basis of a reasonable investment-backed
expectation was that the Federal Government had explicitly guaranteed
to Monsanto a measure of confidentiality and exclusive use.
Monsanto reasonable investment-backed expectation analysis
for determining whether a government regulation constitutes
a taking requiring just compensation, we must examine the value
of the music copyright holders ability to control the
copyright. A copyright holder depends on the ability to control
the use of the copyrighted work by authorizing use or excluding
from use. If Congress establishes compulsory licensing of music
on the Internet, it forces the copyright holders to allow others
to use their music, thus destroying the right to exclude.
that for many music copyright holders the economic value of
the copyright lies in their expectation that their works will
be protected from unauthorized use, the presence of this protection
stimulates and encourages the creation of more music. Compulsory
licensing would permit companies like Napster to pay a statutory
fee for enabling copyrighted material to be "swapped"
between users. Digital technology allows music that is downloaded
and copied from the Internet to be perfectly reproduced (or
"burned" onto CDs). Once the user has the perfect
copy of music, more copies can be made and distributed. It is
likely that if users are able to make infinite numbers of copies
of songs without paying, retail sales of music will decline.
Even though "store bought" compact discs are already
frequently copied and shared, the government should not make
it any easier for additional copyright infringements to occur
through music sharing sites on the Internet. If musicians and
record companies have their copyright protection taken away
by compulsory licensing, the value of their copyright as intellectual
property will significantly decrease, perhaps even eliminating
all economic value beyond the statutory licensing fee.
current copyright law protects copyrighted works from unauthorized
use. Compulsory licensing forces copyright holders to involuntarily
allow use of their works, which negates the very protection
granted by the copyright laws passed by Congress under its authority
granted by Article I of the Constitution. This type of taking
violates the Fifth Amendment and requires just compensation.
If there is a taking, is it a taking for public use?
Public use will be found as long as the taking has some conceivable
public character. It is hard to imagine a government action that
would not fall within this wide scope of public use or public
benefit. Arguably a public benefit exists in providing the music
through the Internet because the public benefits from increased
access to the creative endeavors of artists and music may be more
quickly available on the Internet.
licensing of music on the Internet is likely to be justified as
necessary if record companies and Internet music providers fail
to agree to license arrangements. Since music is currently being
played on the Internet by a variety of providers in a variety
of ways, Congress may justify compulsory licensing as benefiting
the public because it eliminates copyright infringement, avoids
numerous lawsuits and makes it more efficient to access music
on the web.
though case law supports the conclusion that the courts most likely
will determine that compulsory licensing is for public use, merely
making music more available and convenient for use on the Net
does not justify the public use that was intended by the Fifth
Amendment. This particular use would seem to stretch the bounds
of the Takings Clause beyond where the courts should be willing
If there is a taking for public use, does compulsory licensing
adequately provide for just compensation?
compulsory licensing of music on the Internet is a taking that
would require just compensation, a statutory royalty payment scheme
arguably does not provide just compensation for the music copyright
holder. Understanding how just compensation is determined in taking
cases is just as confusing as trying to understand the taking
analysis itself. In United States v. Cors, Justice Douglas
stated that the Court had been careful not to reduce just compensation
to a formula. The Fifth Amendment "does not contain any definite
standards of fairness by which the measure of just compensation
is to be determined
The Court in an endeavor to find working
rules that will do substantial justice has adopted practical standards,
including that of market value
But it has refused to make
a fetish even of market value, since it may not be the best measure
of value in some cases."
In most instances,
just compensation will be determined by fair market value of the
property taken. Fair market value is the price that a willing
buyer will pay a willing seller for the property. However, a court
should not use market value if it would seriously undercompensate
or overcompensate the property owner for the economic loss. Specifically,
the Court has suggested that the market value standard should
not be used when it is too difficult to determine or when its
application would result in injustice to the owner or public.
of compulsory licensing use fair market value in establishing
a statutory royalty payment scheme. But many of the existing forms
of compulsory licenses came before the significant technological
advancements of today. Recent advancements in digital technology
allow the average individual to copy music (whether store bought
or Internet downloaded) in studio quality without a decline in
generation-to-generation copying. Internet companies like Napster
make file sharing so simple that kids can sit in their room at
home, download songs onto their hard drives in studio quality
digital format, then burn "studio perfect" copies of
the songs onto CDs for unknown and multiple secondary uses.
With millions of Napster users downloading millions of songs,
digital copying of music from the Internet has to have a severe
impact on the economic value of the music copyright. It is very
likely that the volume of abuse by unauthorized users has increased
with technological advancements. Just because compulsory licensing
works in some instances even when there are unauthorized uses,
does not mean that it should be applied to the Internet file sharing.
Court has suggested that the market value standard should not
be used when it is too difficult to determine or when its application
would result in injustice to the owner or public. Where endless
studio quality copying is made easier through technological advancements,
determining fair market value becomes more arbitrary. Although
arbitrary determinations do not necessarily mean they are unjust
for Fifth Amendment purposes, Congress should be cautious in considering
compulsory licensing for the Internet and should consider whether
existing methods of valuing compensation are appropriate with
todays technological advancements.
Constitution grants to Congress the authority to protect copyrights
as a property right through Article I and the Fifth Amendment. Compulsory
licensing of music on the Internet may seem like a convenient way
of providing public access to music, while providing compensation
to copyright holders, but this destroys the copyright holders
right to control his property. Congress should continue to protect
property rights such as copyright and allow the music copyright
holders the freedom to continue to negotiate terms for others to
use their property.
should resist the temptation to impose compulsory licensing as a
"quick fix" to the battle for control within the music
industry. Legislators should not intervene in the private marketplace
for intellectual property rights by imposing compulsory copyright
licenses that discourage private negotiation and inhibit the development
of marketplace solutions. Industry advances, such as digital envelopes,
digital boxes, digital wallets, watermarking and other forms of
encryption are being developed and multiple alternatives exist,
such as pay-per-listen, that maintain copyright integrity without
imposing compulsory licensing and denying the copyright holder the
right to exclude. Congress should heed the advice of the U.S. Copyright
Office that "[i]n our free enterprise, marketplace system,
a government mandated compulsory taking of property rights is a
Candidate (May 2003), Chapman University School of Law; B.A. (with
honors), California State University Fullerton (1989). I would like
to thank Professor John Eastman and Professor Tom Bell who provided
helpful editorial comments.
General Counsel, Center for Individual Freedom.
Codified at 17 U.S.C. §§ 101-1332 (2000).
For more information about licenses, see William Sloan
Coats, Vickie L. Freeman, John G. Given and Heather D. Rafter,
Symposium: Legal and Business Issues in the Digital Distribution
of Music: Streaming into the Future: Music and Video Online,
20 Loy. L.A. Ent. L. Rev. 285 (2000).
v. Monsanto Co., 467 U.S. 986 (1984). See also Thomas
F. Cotter, Do Federal Uses of Intellectual Property Implicate
the Fifth Amendment?, 50 Fla. L. Rev. 529 (July 1998).
Advances in technology have made digitized copies the perfect
replica that can be made at once without loss in resulting quality.
For example, Audio Home Recording Act of 1992 (17 U.S.C. §
1008) (2001), Fairness in Music Licensing Act of 1998 (17 U.S.C.
§ 110(5)(B)(1999)), Online Copyright Infringement Liability
Limitation Act (Title II of DMCA, codified as 17 U.S.C. §
512), and No Electronic Theft Act (Pub. L. No. 105-147, 111
Stat. 2678) (1997) (codified in scattered sections of 17-18
17 U.S.C. §§101-1332 (2000).
These rights are subject to numerous exceptions. There is, however,
a trend in the United States toward expanding the rights of
copyright owners and narrowing the free use exemptions applicable
to copyrighted works. For a detailed discussion of current copyright
law, see Raymond A. Kurz & Celine M. Jimenez, Copyrights
On-Line, 39 How. L.J. 431 (Winter 1996). See also
Martha F. Phelps, Complying With Requirements For a Statutory
License in Sound Recordings Under the Digital Millennium Copyright
Act of 1998, Boston Bar Journal (March/April 2001).
Pub. L. No. 104-39, 109 Stat. 336 (1995) (codified as amended
in scattered sections of 17 U.S.C.).
Dov H. Scherzer, Statutory Fee Issues for Online Recordings,
Entertainment Law and Finance, 15 No. 9 (Dec. 1999).
Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as amended
in scattered sections of 17 U.S.C. and 18 U.S.C. § 4001).
& M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1028
(9th Cir. 2001).
U.S. CONST. amend. V.
v. Monsanto Co., 467 U.S. 986, 1000-1001 (1984).
See also College Savings Bank v. Florida Prepaid Postsecondary
Educ. Exp. Bd., 527 U.S. 666 (1999).
Aetna v. United States, 444 U.S. 164 (1979).
Savings Bank, 527 U.S. at 673. See generally Peter
Bray, Note: After College Savings v. Florida Prepaid, Are
States Subject to Suit for Copyright Infringement? The Copyright
Remedy Clarification Act and Chavez v. Arte Publico Press,
36 Hous. L. Rev. 1531 (Winter 1999).
Aetna, 444 U.S. at 175.
v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).
v. South Carolina Coastal Council, 505 U.S. 1003 (1992).
Central Transp. Co. v. New York City, 438 U.S. 104 (1978).
458 U.S. at 438-441.
e.g., Loretto and Penn Central
However, even if compulsory licensing is a taking per se, a
statutory royalty scheme will still not fairly compensate the
copyright holders for the use of their work on the Internet.
See infra notes 39-44 and accompanying text.
Central Transp. Co. v. New York City, 438 U.S. 104 (1978).
Johan Deprez, Note: Risk, Uncertainty and Nonergodicity in
the Determination of Investment-Backed Expectations: A Post
Keynesian Alternative to Posnerian Doctrine in the Analysis
of Regulatory Takings, 34 Loy. L.A. L. Rev. 1221, 1227 (April
2001) (citation omitted).
supra notes22-23 and accompanying text.
v. Monsanto Co., 467 U.S. 986, 1012 (1984). See also
Housing Auth. v. Midkiff, 467 U.S. 229 (1984).
States v. Cors, 337 U.S. 325, 332 (1949).
States v. Fuller, 409 U.S. 488, 490 (1973).
Glynn S. Lunney, Jr., Articles: Compensation for Takings:
How Much is Just?, 42 Cath. U. L. Rev. 721, 731 (Summer
1993); see generally Leslie A. Fields, Making Tools
of the Valuation Rules, American Law Institute-American
Bar Association Continuing Legal Education (January 4, 2001;
H. Dixon Montague, Market Value and All That Jazz: The Proof
of the Pudding Is in the Eating, 30 Urb. Law. 631 (Summer
States v. Commodities Trading Corp., 339 U.S. 121, 123 (1950).
For a thorough discussion of the multiple technologies available,
see Wendy M. Pollack, Note: Tuning In: The Future
of Copyright Protection for Online Music in the Digital Millennium,
68 Fordham L. Rev. 2445 (May 2000).
Register of Copyrights, Report on the Cable and Satellite Carrier
Compulsory Licenses: An Overview and Analysis, xii (Mar. 1992).
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