The Emperor's New Copyright

Abstract

Copyright law aims to incentivize the creation of original works by extending protection against copying to rights holders. Not all works merit copyright protection, however. Some are specifically excluded from it. Increasingly, some of these works nonetheless parade around as if cloaked in copyright protection. This Article seeks to expose them.

Through a series of contemporary examples, this Article delves into the underexamined, extra-statutory revenue streams made possible by the mere existence of copyright law, notwithstanding its nonapplication, or misapplication, to the “work” at issue. Some of these examples involve a platform-legislator that overrides statutory law, and in some cases congressional intent, via private policymaking. Other examples show private parties wielding market power in order to close perceived gaps in the statutory law in their favor. Still others involve the abuse or misuse of statutory rights, both incidental and intentional, or from outright chicanery. Some of the examples involve no copyrighted work at all. The emperor has no clothes.

In all cases, the purported rights holder derives extra-statutory revenue in the name of copyright while potentially threatening the statute’s purported goal of incentivizing creation for public consumption. In this tale, the government plays the role of complicit advisor through a combination of delegation, abdication, and enforcement forbearance, while power disparities relegate users and consumers to the role of hapless townspeople who play along for fear of repercussion.

Keywords: intellectual property, copyright, deals, negotiations, legislation, regulation, contract, private ordering, licensing, statutory law, law and economics

JEL Classification: K00, K10, K11, K12, K20, K30, K40