Copyright as Market Prospect

73 Pages Posted: 22 Feb 2017 Last revised: 12 Feb 2018

Date Written: 2018

Abstract

For many decades now, copyright jurisprudence and scholarship have looked to the common law of torts—principally trespass and negligence—in order to understand copyright’s structure of entitlement and liability. This focus on property- and harm-based torts has altogether ignored an area of tort law with significant import for our understanding of copyright law: tortious interference with a prospective economic advantage. This Article develops an understanding of copyright law using tortious interference with a prospect as a homology. Tortious interference with a prospect allows a plaintiff to recover when a defendant's volitional actions interfere with a potential economic benefit that was likely to accrue to the plaintiff prior to the defendant’s intervention. Premised on the idea of a probabilistic harm and driven by instrumental considerations, the tort works by treating a possible market benefit as the basis of an interest that is worthy of protection against specific behavior. As a supposed incentive for creativity, copyright law operates in ways that are strikingly similar to tortious interference with a prospect. Much like tortious interference with a prospect, it functions by first identifying a zone of probabilistic market benefits, and then protecting that zone against specific volitional interferences through a framework of liability. The Article unpacks the strong analytical and normative parallels between the two, and argues that their similarity sheds new and important light on several persistent puzzles within current copyright jurisprudence.

Keywords: copyright, common law, tortious interference, market prospect

JEL Classification: O34

Suggested Citation

Balganesh, Shyamkrishna, Copyright as Market Prospect (2018). University of Pennsylvania Law Review, Vol. 166, p. 443 (2018); U of Penn Law School, Public Law Research Paper No. 18-2. Available at SSRN: https://ssrn.com/abstract=2920943

Shyamkrishna Balganesh (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
215-573-7780 (Phone)

HOME PAGE: http://sbalganesh.law.upenn.edu

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