INTRODUCTION

Copyright law is today perceived as principally statutory in origin. The Copyright Act of 1976 is thought to have codified most questions of copyright policy and doctrine, and delegated a fairly limited set of ques- tions to courts for them to resolve incrementally on a case-by-case basis.1
This is in contrast to prior copyright enactments, which were brief and open-ended in structure, and seemingly envisaged a more active role for courts in rule- and policy-making. Judge Leval thus notes how over time, the idea of a constructive “partnership” between the legislature and courts in making and developing copyright law that once existed, has all but dis- appeared, and that today “[c]ourts are regarded with suspicion” in the be- lief that they ought to defer to the intentions of Congress.2 On the face of things then, courts are today believed to have a fairly minimal role to play in the copyright system, restricted to interpreting the statute and applying it to individual cases.3 Broader questions — including ones about copy- right’s proper goals and scope — are thought to be within the sole purview of Congress, except when expressly delegated to courts,4 or when infused with constitutional significance.5 Justice Brandeis’s famous claim that “[c]ourts are ill-equipped to make the investigations” needed to determine the scope and extent of exclusive rights in information is in many ways the dominant way of thinking about copyright law and reform.6