The first of these options -- though common in the discourse of copyright law -- is vulnerable to criticism as naively positivist. See, for example, Jessica Litman, "The Public Domain," Emory Law Journal 39 (1990): 965, 996; Jane Ginsburg, "Sabotaging and Reconstructing History: A Comment on the Scope of Copyright Protection in Works of History after Hoehling v. Universal City Studios," Bulletin of the Copyright Society 29 (1982): 647, at 658.