Escape from Copyright: Market Success vs. Statutory Failure in the Protection of Expressive Works

Abstract

Copyright law, originally excused as a necessary evil, threatens now to become an inescapable burden. Because state and common law rights seemed inadequate to protect expressive works from unrestricted copying, the Founders expressly authorized federal copyright legislation. Lawmakers have read that constitutional mandate liberally. Each new version of the Copyright Act has embodied longer, broader, and more powerful legal protections. Meanwhile, private initiatives have developed increasingly effective means of safeguarding copyrighted works. Alarmed that these dual trends benefit copyright owners at too great an expense to the public interest, many commentators argue that the Copyright Act should limit and preempt non-statutory alternatives. But that puts matters exactly backwards. Besieged by lobbyists and bloated by public choice pressures, the Copyright Act has fallen into statutory failure. Insofar as common law and self-help technologies unite to secure exclusive rights in expressive works, in contrast, they succeed in overcoming the market failure that originally justified the Copyright Act. If legislativeand private protections prove too powerful in combination, therefore, copyright owners should have the right to choose between the two. Rather than automatically nullifying private efforts, courts should allow the owners of expressive works to abandon the Copyright Act's protections and rely once more on non-statutory ones. Because the idea has only just begun to draw scholarly attention, this paper offers a comprehensive analysis of such an exit option. It finds that principles of law, equity, and policy favor opening an escape from copyright and describes both potential and currently functioning means of putting that theory into practice.