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

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