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 fair use litigation will always be piecemeal: no legislative solution can answer in advance the outcome of a given dispute.

H.R. 4412 was introduced as a result of concerns by some biographers, historians, and publishers that their ability to use unpublished primary source material such as copyrighted letters and diaries had been limited to two decisions from the United States Court of Appeals for the Second Circuit, Salinger v. Random House, Inc., and New Era Publications, International ApS v. Henry Holt & Company. In order to understand these complaints, a brief review of the fair use doctrine as applied to such material is required.

Before the 1976 Copyright Act, copyright law in the United States was divided between federal and state protection. Published works were protected by the federal copyright law, while unpublished works were generally protected by state common law. The common law, going back to late eighteenth century English cases, had been strict in prohibiting fair use of unpublished works under the theory that the author should decide when and in what form his or her work should first reach the public.

The 1976 Copyright Act extended protection to all copyrightable published and unpublished works, preempting equivalent state protection. In codifying fair use in Section 107 of title 17, United States Code, however, the statute did not draw a distinction between published and unpublished works. The report of this Committee accompanying the Act did, though, state an intention not to “change, narrow, or enlarge [the present judicial doctrine of fair use] in any way.” The only direct discussion of unpublished works occurs in the 1975 Senate report: “The applicability of the fair use doctrine to unpublished works is narrowly limited, since although the work is unavailable, this is the result of a deliberate decision on the part of the copyright owner. Under ordinary