Tales of the Unintended in Copyright Law
Studies in Law, Politics, and Society, Vol. 67, 2015
21 Pages Posted: 21 Sep 2013 Last revised: 22 Oct 2016
Date Written: September 20, 2013
Having unintended consequences is an oft-cited defect of copyright reform. Whether it is the Digital Millennium Copyright Act, the recently adopted Anti-Counterfeiting Trade Agreement, the still-under-negotiation Trans-Pacific Partnership Agreement, or such highly controversial copyright legislation as the PROTECT IP ACT or the Stop Online Piracy Act, critics of copyright-strengthening measures have lamented their potential for creating collateral damage. As critics have reasoned, the collateral damage caused by these proposed measures outweigh their intended benefits, and policymakers should refrain from adopting these measures.
While undertaking cost-benefit analysis is commonsensical and useful, adopting laws that have unintended consequences is nothing new. In the copyright area alone, one could find many examples featuring laws that result in unintended consequences. Indeed, many of the ill-advised copyright laws were adopted long before the active lobbying by the existing entertainment industries. A better and deeper understanding of the "disconnect" between law and its intended consequences is therefore in order.
To help us grasp the complex reasons behind the unintended consequences of copyright law, and the role legal scholars could play in alleviating these consequences, this Article retells three "tales of the unintended." All of them concern the 1976 Copyright Act, the present U.S. copyright statute. The first tale focuses on fair use, the second on statutory damages, and the third on formalities. From these three tales, the Article draws five different morals that provide insights into the ongoing process of copyright reform. These insights will enable policymakers and commentators to rethink the ongoing and future development of copyright law.
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