What Copyright Can\u27t Do

Copyright has become a powerful regulatory regime for modern American life. Copyrighted works, including text, images, video, sounds, music, and software, coupled with routine, frictionless copying, form a large part of the information, cultural and social context, and infrastructure of our increasingly digital society. Copyright law\u27s powerful remedies are now positioned to intervene in a wide range of everyday activities. As a result, scholars, policymakers, and advocates have increasingly called for modifying and applying U.S. copyright law to solve a wide range of public policy problems, from vindicating disability rights to protecting privacy to promoting competition among wireless carriers. But there are some things that copyright can\u27t do. This Article identifies practical limits in the structure of contemporary copyright law and doctrine that constrain copyright\u27s capabilities for solving policy problems beyond copyright\u27s usual ambit. From these limits, this Article generates a novel taxonomy of regulatory tools missing from copyright law\u27s toolkit for addressing the harms and benefits of creative works and uses. These interventions--including regulating harmful creation and compelling beneficial creation, subsidizing creation and supporting creator welfare, preventing harmful uses of works by rightsholders and licensees, compelling licensed uses, and facilitating and liberating beneficial uses--are functions that depend on interventions from outside copyright law. This Article illustrates the important policy consequences of copyright\u27s missing capabilities via case studies where scholars, policymakers, and advocates have deployed copyright doctrines in nontraditional contexts. These examples include remediating works into accessible formats for disabled consumers, stopping the creation of child sexual abuse material, regulating the nonconsensual distribution of intimate imagery, governing the development of generative artificial intelligence, allowing consumers to switch cell phone networks, and promoting good-faith security research. These examples show that copyright law\u27s underappreciated structural limits often impede efforts to solve public policy problems with novel copyright interventions

Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives

In this Article, I explore the concept of Tribal self-determination in the context of systems that serve American Indian and Alaska Native communities. I investigate the vast health disparities that exist in Tribal communities, as well as the history and current legal framework for the provision of health care in Indian Country. Part of this discussion also provides information on the federal laws and policies that have fractured the traditional lifeways of Native communities and contributed to the disparate health outcomes that now exist. I also provide background on the fundamental federal laws and policies, particularly the Indian Self-Determination and Education Assistance Act of 1975, that have facilitated greater Tribal control over programs and services for Tribal communities, including health systems. Tribally managed health systems can, and are, playing a crucial role in closing this health gap. This Article also positions the status of Native communities in the United States within the global dialogue on the right to health, as Indigenous Peoples in settler colonial states are demonstrably experiencing similar disparate outcomes. This discussion includes background on the international legal framework for the right to the highest attainable standard of health, the rights of Indigenous Peoples, and the social determinants of health, some of which are arguably unique to Indigenous communities. The Article explores these concepts for the lessons that may be garnered for the benefit of Tribal health systems. It also argues that Tribes that are successfully operating healthcare systems have their own lessons to offer the global community in providing quality care and bringing American Indian and Alaska Native communities closer to actualizing the highest attainable standard of health