In this Article, the author reveals a fundamental flaw in how courts and scholars have come to reason about copyright law. Creators expect to be rewarded for engaging in the labor of creation, and one of those rewards is the bundle of exclusive rights known as "copyright." Congress uses copyright law to give creators the rewards they expect, so as to safeguard their incentives to create. But what if creators expect too much? Must Congress use copyright law to satisfy those expectations, thus preserving what creators claim to require as "incentive?" To date, everyone has assumed that the answer is "yes." In this Article, however, the author argues that in defining the boundaries of copyright by reference to incentives, which are satisfied (or not) depending on what creators expect, Congress is ceding to creators the power to locate the boundaries of copyright law. Courts, in turn, cannot relocate those boundaries without deciding which expectations are consistent with the public interest and which ones are not-and courts do not have the tools to make that decision. Until Congress decides which rights creators are entitled to expect from copyright law (and which rights they are not), no amount of tinkering around the edges can prevent the law from becoming an instrument of increasingly perfect control-thus producing a nation of infringers who honor that law only in the breach.
Sara K. Stadler,
Incentive and Expectation in Copyright,
58 Hastings L.J. 433
Available at: https://repository.uchastings.edu/hastings_law_journal/vol58/iss3/1