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Should a Licensing Market Require Licensing?

Law & Contemp. Probs., Vol. 70, p. 185, 2007

Stanford Public Law Working Paper No. 917161

30 Pages Posted: 14 Jul 2006 Last revised: 6 Feb 2011

Mark A. Lemley

Stanford Law School

Date Written: July 13, 2006

Abstract

Copyright owners have persuaded the courts that they should win cases in which a defendant's use doesn't injure their market directly, but in which they could and would have charged a fee to grant permission for the use. Even assuming courts are right to have accepted this argument, it is unreasonable to then give the copyright owner not just the fee they would have charged but the power to prevent the use altogether or to collect damages far in excess of that fee. Licensing market cases are excellent choices for separating compensation and control, giving copyright owners the right to get paid without giving them control over transformative uses. Doing so is harder than simply denying injunctive relief, however. It requires us to rethink our definition of damages in copyright law with the aim of remedying injury rather than always seeking to deter infringement.

Suggested Citation

Lemley, Mark A., Should a Licensing Market Require Licensing? (July 13, 2006). Law & Contemp. Probs., Vol. 70, p. 185, 2007; Stanford Public Law Working Paper No. 917161. Available at SSRN: https://ssrn.com/abstract=917161

Mark A. Lemley (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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