Dissemination Must Serve Authors: How the U.S. Supreme Court Erred

20 Pages Posted: 3 Aug 2013 Last revised: 29 Aug 2014

Wendy J. Gordon

Boston University School of Law

Date Written: August 3, 2013

Abstract

The US Congress has enacted expansions of copyright which arguably impose high social costs and generate little incentives for authorial creativity. When the two most expansive statutes were challenged as unconstitutional, the US Supreme Court rebuffed the challenges, partly on the supposed ground that copyright law could legitimately seek to promote non-authorial interests; apparently, Congress could enact provisions aiming to support non-creative disseminative activities such as publishing, or restoring and distributing old film stock, even if authorial incentives were not served. Such an error might have arisen because of three phenomena (in economics, history, and law, respectively) that might easily be misunderstood but which, when unpacked, no longer lead plausibly to a stand-alone embrace of disseminator interests. The purpose of this article is to analyse and comment on this error from several relevant points of view.

Keywords: copyright, authors, disseminators, publishers, common-law copyright, incentive-access paradigm, trade secret, secondary liability, distribution right, price as signal, Arrow paradox, self-help, arms race, Golan, comparative institutional analysis, intellectual property

JEL Classification: K11, K19, K39, O34, O38

Suggested Citation

Gordon, Wendy J., Dissemination Must Serve Authors: How the U.S. Supreme Court Erred (August 3, 2013). Review of Economic Research on Copyright Issues, 2013, 10(1), 1-19; Boston Univ. School of Law, Public Law Research Paper No. 13-33; Boston Univ. School of Law, Law and Economics Research Paper No. 13-33. Available at SSRN: https://ssrn.com/abstract=2305535

Wendy J. Gordon (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-4420 (Phone)
617-353-3077 (Fax)

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