Should a Licensing Market Require Licensing?

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.