Incentive and Expectation in Copyright

Abstract:     
Scholars have offered a variety of explanations for the expansion of rights under copyright law, including legislative capture. While Congress certainly has been responsive to interest groups in enacting copyright legislation, legislative capture is not entirely (or even mostly) to blame for a problem that is rooted primarily in history and rhetoric. In this Article, Professor Stadler argues that the incentive theory in copyright law is plagued by a circularity of expectation: With the stated goal of generating creative "incentive," the law asks what rights creators expect to enjoy; it grants rights in satisfaction of those expectations; and each new grant raises expectations among creators, thus forming the basis of demands for more rights. In defining legal rights by reference to incentives, which are satisfied (or not) depending on what creators expect, Congress has ceded to creators the power to locate the boundaries of copyright law. Courts cannot relocate those boundaries without deciding which incentives are legitimate and which ones are not, and as Justice Breyer learned in Eldred v. Ashcroft, courts do not have the tools to make that decision. Only Congress can make it. Until Congress decides which rights creators are entitled to expect from copyright law (and which rights they are not), no amount of tinkering around the edges can prevent the law from becoming an instrument of increasingly "perfect control" - thus producing a nation of infringers who honor that law only in the breach.

Keywords: copyright, rhetoric, history, incentive, incentives, expectation, expectations, circular, circularity, utilitarian, utilitarianism, natural rights, Eldred

Accepted Paper Series