Claiming the Copyright

Historically, a copyright holder had to claim. And today there is no doctrinal reason to exempt copyright from claiming. I offer a modest proposal that seeks to balance these interests: a copyright holder should have to claim an interest in her work, and if she doesn’t, users of the work should be able to rely on an innocent infringer defense when facing a claim for infringement. To explore more fully the proposition that a copyright holder should have to claim an interest in her work, this Article progresses in four parts. Part I explores the foundations and reasons for public claiming of the intangible copyright. Part II traces the history of formalities in the United States. Part III outlines the problems that have arisen because we no longer require claiming. And Part IV contextualizes and discusses my proposal to incentivize copyright holders to claim their works and to reinvigorate the innocent infringer defense

Deciding Fair Use

An often-overlooked question is who should decide the important questions of the day. This Article takes up the inquiry as it relates to copyright fair use. Conceptually, fair use is a public policy question. The better policy view is that fair use is a statutory right, a speech-protective safeguard, and a defense—but not an affirmative defense. Operationally, who decides fair use is a judicial policy question. Who decides a particular question is informed by the nature of the question. Courts are arbiters of law, and juries are arbiters of facts. For a mixed question of law and fact, who decides is driven by whether the question is more fact-like or more law-like. Categorizing such questions is, at its core, an allocative policy question. The policy answer is driven by the nature of the question, relative institutional skills, and the importance of the interest at stake. Properly seen as an affirmative right, and not an affirmative defense, the interests at stake in fair use cases are a user’s right to free expression balanced against a copyright holder’s statutory privilege. This Article contributes to the scholarly conversations by laying bare the reality that who decides the question of copyright fair use is nakedly political. Courts are actively wrestling with this unresolved policy question. The Seventh Amendment fashions a policy preference for juries to decide questions of fact. Moreover, history confirms a long tradition of relying on juries to make fair use determinations. But it is unclear if this tradition will continue. Without Supreme Court guidance, categorizing fair use as more law-like or more fact-like is so slippery and malleable that the Seventh Amendment ceases to be an influence—much less a command

Copyright Policy as Catalyst and Barrier to Innovation and Free Expression

At its core, copyright is an innovation policy, a competition policy, and a free expression policy. Copyright seeks to balance incentivizing a public good with providing a private interest. Copyright’s purpose to catalyze creative expression and innovation is canonical; creativity and innovation are synergetic. Copyright is a means of promoting progress; copyright is not an end in itself. Much like freedom of expression and new innovations are not ends in themselves, copyright protection is not for its own sake. Freedom of expression is often heralded as a means of fostering democratic self-governance, truth, and happiness. Innovation is seen as a means of fostering economic growth, prosperity, development, and happiness. Similarly, copyright is a means of fostering human progress and enriching the public domain from which others can freely draw. The ultimate beneficiary of copyright policy should be the public interest. This Article offers a broad-minded assessment of copyright policy’s effects on innovation and free expression before offering some sensible areas for reform