Copyright as Trade Regulation

Abstract

The scholarly debate in copyright has tended to converge around a handful of problems: the prevalence of copying; the "death" of fair use; and the rise of access controls that threaten to replace copyright law altogether. These problems are both related and inevitable, the byproducts of a web of statutes providing copyright owners with the right to control how their works are experienced, and by whom. In this Article, Professor Stadler describes a copyright law in which the creation of property rights is a means of identifying and punishing methods of unfair competition in the relevant markets for copies of copyrighted works. In these markets, acts of copying are not "unfair" because they do not inflict significant competitive harm. Accordingly, Professor Stadler argues that copyright owners should enjoy only the exclusive right to distribute copies (and perhaps, derivatives) of their works to the public. She then describes how this conception of copyright might help to solve the problems at the very center of the copyright debate.

Keywords: copyright, trade, regulation, property, unfair competition, copies, competition, reproduction, distribution, fair use, contract, digital rights management, drm, dmca