Courtesy Without Copyright

It is now a familiar point that positive law accounts for only part of the systems that regulate human behavior. Robert Ellickson’s cornerstone treatise, Order Without Law, showed how closely-knit groups construct norm-based rule structures that govern behavior more efficiently than state-created law. In the past decade or so, scholars have investigated a number of areas in which individuals engaged in creative production similarly opt for norm-based systems in lieu of copyright or trademark law.

Professor Robert Spoo’s recent article, Courtesy Paratexts: Informal Publishing Norms and the Copyright Vacuum in Nineteenth-Century America, represents a fascinating and important contribution to this growing literature. Spoo’s article harkens back to the mid- and late 1800s, a time when foreign authors received no copyright protection in the United States. In the absence of formal legal protection for foreign authors’ works, domestic publishers created a series of agreements with each other that the first house to print copies of a foreign author’s novel would be able to do so without competition—even in the absence of enforceable copyright law. These informal agreements were expressed and furthered to a large extent by courtesy paratexts: Brief written passages in the front matter of a book in which the book’s author would affirm that the publisher was acting within the courtesy of the trade to print their work, and exhorting readers to buy only authorized editions to assure the author and publisher alike their fair remuneration. Continue reading "Courtesy Without Copyright"

Tort Theory in Copyright Law: Thinking about Patrick Goold’s Unbundling the “Tort” of Copyright Infringement

Patrick R. Goold, Unbundling the “Tort” of Copyright Infringement 102 Va. L. Rev. 1833 (2016), available at SSRN

Patrick Goold’s Unbundling the “Tort” of Copyright Infringement (“Unbundling”) is an ambitious and remarkably illuminating article. Its central thesis is that “copyright infringement” is best understood as a cover term for five different “copytorts”1 related to the plaintiff’s being a copyright owner. By way of comparison, “trespass” and “nuisance” in tort law are pleaded and articulated with different names even though they both pertain to wrongs related to a plaintiff’s ownership of realty; this is because they are, conceptually and practically, quite different wrongs. Copyright law has never separated out its five different legal wrongs, either through statute or through judicial elaboration, either formally or informally. It has used the one phrase “copyright infringement” indiscriminately for all. It turns out, Goold argues, that much of the confusion and conflict within copyright case law can be traced back to the failure to draw distinctions among the five copytorts. The task of the article is to outline the distinctions, thereby beginning the process of solving a number of doctrinal problems.

The three doctrinal problems Goold presents pertain to audience, harm, and analogy. As to “audience,” the question concerns the observer, or arbiter, or audience that courts should employ to determine whether allegedly infringing material is sufficiently similar to the copyrighted material: must it be such as to cause confusion to a reasonable person, an ordinary consumer, or an expert? As to “harm” (which arises in connection with a fair use defense) the question concerns “‘the effect of the [copyist’s] use upon the potential market for or value of the copyrighted work.’” (P. 1848 (quoting 17 U.S.C § 107 (2012)).) Courts have construed this factor to turn on “whether the copying caused the owner cognizable harm” (Id.); some courts in turn focus upon demand diversion, others on lost fees, and others on reputational, privacy, or other nonfinancial injuries. Finally, as to “analogy,” the question is how copyright infringement ought to be modeled as a legal wrong: is it like trespass, like conversion, like an economic tort or unfair competition, or like unjust enrichment? Continue reading "Tort Theory in Copyright Law: Thinking about Patrick Goold’s Unbundling the “Tort” of Copyright Infringement"

The Plural Tort Structure of Copyright Law

Patrick Goold, Unbundling the ‘Tort’ of Copyright Infringement, 102 Va. L. Rev. (forthcoming 2016), available at SSRN.

What kind of legal wrong is copyright infringement? Scholars tend to unreflectively regard copyright infringement as a tort. In his elegant and insightful recent article, Unbundling the ‘Tort’ of Copyright Infringement, Patrick Goold complicates this received wisdom by applying rigorous conceptual analysis to a body of law—copyright—that is rarely analyzed in those terms. In so doing, Goold invites us to see copyright law in a new and more nuanced light, and also seeks to show that courts’ purportedly scattered approach to infringement may not be so incoherent after all.

The central premise of Goold’s article is simple: the orthodox view of copyright infringement as a single tort mischaracterizes how courts actually resolve infringement cases. Calling on Prosser’s classic disaggregation of privacy into a “gallery of torts,” Goold identifies five different “copy-torts”: consumer copying, competitor copying, expressive privacy invasion, artistic reputation injury, and breach of creative control. Each of these different copy-torts, Goold argues, reflects the distinct interests that courts seek to vindicate using copyright law. Continue reading "The Plural Tort Structure of Copyright Law"

Copyright’s Family Law

Of the many things that may cause us to admire an article, one is the author’s identification of a meaningful relationship between fields that had otherwise seemed entirely disparate. In the past year, two pieces—Tony Reese’s Be Careful Where You Die and Brad Greenberg’s DOMA’s Ghost and Copyright Reversionary Interests—identified just such a non-obvious nexus between a popular issue of great social importance (marriage equality) and a relatively obscure topic of great statutory technicality (termination of copyright transfers).

Both of these articles explore issues raised by two of copyright’s distinctive future interest provisions. Descendants of authors whose copyrights vested prior to 1978 are statutorily entitled, under certain conditions, to reversionary interests in those copyrights. And heirs of any authors stand to inherit the inalienable right to terminate transfers established by the Copyright Act of 1976. The trick, in each case, is that the heirs who enjoy these potential future interests—typically, the surviving spouse and children—are determined by statute, regardless of an author’s estate plan or preferences to the contrary. Continue reading "Copyright’s Family Law"

An Information-Cost Critique of Chattel Property Servitudes

Mulligan, Christina, The Cost of Personal Property Servitudes: Lessons for the Internet of Things (July 14, 2014). Available at SSRN.

Property scholars have long noted a peculiar inconsistency between real and chattel property. While law increasingly tolerates different forms of ownership in and servitudes limiting the use of land, it has remained steadfastly resistant to such restrictions in the context of personal property. In her sharp new paper, “The Cost of Personal Property Servitudes: Lessons for the Internet of Things,” Christina Mulligan shows that this long-lamented inconsistency isn’t a problem at all, but rather a sensible distinction that flows naturally from the core differences between real and chattel property. This insight not only helps explain a longstanding puzzle in property law, but sheds new light on the increasing practice of content owners using license agreements to restrict the use of digital goods.

From a purely formal perspective, one might reasonably wonder why courts allow increasing complexity in real property ownership—from historical forms like contingent remainders and fees simple subject to executory limitation to modern innovations like condominiums and time-shares—while insisting that no such variation is permitted with respect to chattels. If I can have a defeasible fee interest or a time-share in a vacation home in Boca Raton, why not also in a Rolex or a refrigerator? This seeming has engaged scholars since Coke. Most recently, Molly Van Houweling investigated contract-based restrictions on personal property from the perspective of physical property, suggesting that the same concerns that warrant skepticism about servitudes on real property may be used to govern servitudes in the context of personal property as well. Continue reading "An Information-Cost Critique of Chattel Property Servitudes"