Giving and Including for Happiness

Money can’t buy happiness, so the saying goes. But, does giving away property bring happiness? That is the proposition considered by Professor Dave Fagundes, in his new article Why Less Property is More: Inclusion, Dispossession, & Subjective Well-Being.

Professor Fagundes urges new thinking on the classic conception of property, moving away from possession and exclusion, long the centers of the construct, toward their more obscured counterparts, dispossession and inclusion. Starting with the notion that property historically has been justified for its utilitarian ends, he suggests that if we are not better off when we amass property and exclude, then a different conception of the rights inhering in property might better achieve these ends. Continue reading "Giving and Including for Happiness"

Creative Vigilantism

Amy Adler & Jeanne C. Fromer, Taking Intellectual Property into Their Own Hands, 107 Cal. L. Rev. __ (forthcoming 2019), available at SSRN.

It’s no longer news that a major proportion of property regulation happens outside the bounds of the law thanks to social norms and their extralegal enforcement. Yet legal scholars continue to find new and fascinating ways to advance this insight. The latest installment in the conversation about the norm-based regulation of intangible property is Amy Adler and Jeanne Fromer’s Taking Intellectual Property into Their Own Hands.

This sparkling article1 adds a novel perspective to the dialogue that has been developing for more than a decade about the extralegal regulation of creative production. Most of this work considers how a given group regulates their distinctive works via norms, without recourse to copyright or trademark law. This move has been made with respect to recipes developed by French chefs, roller derby skaters’ nicknames, clowns’ face makeup, tattoo artists’ ink designs, and many others. Continue reading "Creative Vigilantism"

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"

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