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Abstract:
The crisis in the music industry has been brought about only in part by the digital revolution. The layering of copyright ownership interests and the complexity of copyright law, particularly as it applies to music, has also played a major role in the inability of the industry to respond to the rapidly evolving ways in which digital works can be distributed and otherwise exploited.

After detailing the tangle of legal rights in the music industry and identifying the vested industry players and their respective roles, this article describes the difficulties faced by users of new technology in attempting to comply with the law. These problems may explain, at least in part, the widespread phenomenon of what many in the industry see as infringement on a massive, and global, scale. Without low-transaction-cost solutions and reasonable absolute price for obtaining authorization for the digital activities of millions of users, we see a classic example of market failure. Users respond to this failure by effectively exiting the failed market, completely ignoring the overly cumbersome requirements of the law.

This article proposes concrete changes that should be implemented in the Copyright Act. First, the Copyright Act should embrace derivative work independence, eliminating the problems that result from the dual layers of copyright ownership in a final product utilized by downstream listeners. For such a consolidation to be effective in the music industry, however, two additional changes are necessary. First, the compulsory mechanical license for musical works, codified in section 115 of the Copyright Act, must be repealed. Second, sound recording copyright owners must be granted rights equal to those of musical work copyright owners. This package of three changes constitutes a significant modification in the structure of rights in the music industry that would result in a more efficient market for downstream use.

The article also recommends that copyright owners be granted a unified right to "commercially exploit" the copyrighted work, rather than the divisible rights that the Copyright Act currently grants in section 106. In the music industry, copyright owners routinely assign or exclusively license their separate rights to different industry players, dividing these legal entitlements and causing a fractionation of rights in a single copyrighted work. In the digital realm, each of the owners claims that a variety of uses implicates her rights and thus requires her permission. A unified right would take time to influence contracting behavior, but should create vested industry players divided by logical markets rather than clustered around the different statutory rights granted to the copyright owner.

Finally, the article explores the problems associated with industry consolidation and the existing and potential mechanisms to reduce the negative effects of the present consolidation. Congress has included provisions in the Copyright Act aimed at curbing potential abuses of monopoly power, such as the compulsory mechanical license. Over time, however, that compulsory license has significantly contributed to the complicated nature of the industry.

Copyright, Music, Digital

Abstract:
In the era of digital delivery of content, copyright owners have turned with a vengeance to contract law to specify the rights and responsibilities of their customers. Many copyright owners today seek to avoid the express statutory limits on their rights contained in the Copyright Act by invoking the institution of contract. For example, these contracts attempt to prohibit the exercise of rights universally recognized as fair use, such as copying portions of a work for criticisms, product comparison and reverse engineering, or they seek to limit the application of the first sale doctrine. Enforcement of these contractual provisions alters the statutory scheme defined by Congress in the Copyright Act. This Article argues that the current legal doctrines available to invalidate these overreaching provisions or to strike claims asserted for their breach fail to provide appropriate incentives to reform contracting behavior by content owners. Even if, as a matter of contract law, a court would not enforce contractual terms that are inconsistent with the Copyright Act, the use of these provisions in ubiquitous shrinkwrap and clickwrap licenses has an in terrorem effect on users. After exploring the potential chilling effect that these overreaching clauses may have on users' behavior and why it is critical for courts to find ways to discourage the use of such clauses, this article argues that applying an appropriately tailored doctrine of copyright misuse to these licensing terms would provide a more robust reformation of contracting behavior.

Copyright misuse is an equitable defense based on a claim that the copyright owner has used the rights granted by the federal Copyright Act in a manner that is contrary to the public interest; this defense can be raised by an accused infringer that has not been affected by the alleged misuse. Recognizing a copyright misuse defense based on contract clauses that seek to avoid federal limitations on copyright rights has several advantages. First, an assertion of copyright misuse can be made in a case that does not involve a claim for breach of one of these clauses. Second, as an equitable doctrine, misuse is subject to interpretation and revision by the courts; no legislative action is necessary. Third, a successful misuse defense results in a refusal by the court to enforce the copyright until the misuse is "purged." Given the potential downside risk of contractual overreaching, a broader application of the misuse doctrine would, therefore, "chill" a copyright owner's impulse to overreach.

This article proposes that courts recognize a rebuttable presumption of misuse when a copyright owners seek, by contract, to avoid the express statutory limitations on their rights. To rebut the presumption of misuse, a copyright owner would be required to prove that encouraging the type of contracting behavior at issue is not likely to lead to a reduction of the external benefits the Copyright Act seeks to ensure through the limitation the copyright owner is contractually attempting to avoid. Requiring the copyright owner to rebut the presumption of misuse appropriately places the burden on the party that engaged in the presumption-triggering activity, i.e., the drafting or negotiation of the contract containing the offending clause. Employing a rebuttable presumption would allow contracting around the statutory limitations on a copyright owner's rights only on a limited and truly bargained-for basis.

Copyright, misuse, contract, clickwrap, browsewrap, intellectual property

Abstract:
The underlying purpose of the Copyright Act, as stated in the Constitution, is to promote the progress of knowledge and learning. Today, the complexities surrounding copyright law confront millions of users of creative works who find it difficult to determine whether a work is subject to copyright protection, difficult to understand what they can and cannot do with these works, and difficult to locate the copyright owner. These high transaction costs facing users create an impediment to the achievement of copyright's constitutional goal. The Creative Commons offers tools embraced by millions of copyright owners to provide clear public use rights broader than those provided by the Copyright Act. This article posits that by selecting to employ the Creative Commons tools, copyright owners are placing their works into a semicommons status. Property that has a semicommons status embodies both important private rights and important public rights that dynamically interact. Creative works with a semicommons status can facilitate the very progress that copyright law is designed to serve. Thus, this article argues that courts should facilitate the growth of this semicommons of creative works by enhancing the reliability of both the private rights that the copyright owners have retained in these works, as well as the reliability of the public rights that the copyright owners have signaled exist through the use of the Creative Commons tools.

Enforcing the private use rights requires appropriately recognizing both copyright infringement claims and breach of contract claims. Enhancing the reliability of the public use rights requires prohibiting a retraction of those rights by the copyright owner, including any attempt at terminating the grant pursuant to provisions contained in the Copyright Act. This article proposes that courts embrace a doctrine of limited abandonment of copyright to clarify the nature of the public rights in works released under Creative Commons licenses and to enhance the overall reliability, and hence value, of the semicommons of creative works.

Copyright, Creative Commons, License, Abandonment

Abstract:
In the United States utilitarian theory posits that granting an exclusive right in creative expression will provide a necessary incentive to invest in the creation and distribution of expressive works. It is feared that without this incentive there would be insufficient motivation for creation. Indeed, it appears that the U.S. adheres completely to the notion that "no man but a blockhead ever wrote, except for money." Yet the creation of many works, such as emails and papal decrees, ordinarily are not motivated by monetary incentives. Nevertheless, current copyright protection fails to account for the creator's motivation in determining the level of protection of the copyrighted work. Despite its extremely low threshold, copyright protection is not cost-free: granting exclusive rights in expression makes subsequent expression more costly, imposes wealth distribution costs, and creates distributive consequences affecting opportunities for expression. Society should avoid shouldering these costs when they are unnecessary. If copyright law is designed to guard against underproduction of intangible assets then it is entirely appropriate to provide less protection when there is little risk of underproduction. This article argues for less robust copyright protection for differently motivated works. Well-documented industry capture of the legislative process in the field of copyright law makes legislative recalibration of the scope of protection unlikely. This article provides a more realistic approach: courts should incorporate a motivational inquiry when determining the level of similarity needed to demonstrate non-literal infringement and should also expressly consider creator motivations when analyzing the second and fourth fair use factors. Reducing the robustness of copyright protection for differently motivated works will decrease the costs to society and better facilitate the underlying goal of copyright law: the promotion of knowledge and learning.

intellectual property, copyright, fair use