Copyright's Private Ordering and The "Next Great Copyright Act"

Abstract

Private ordering plays a significant role in the application of intellectual property laws, especially in the context of copyright law. In this Article, I highlight some of the dominant modes of private ordering and consider what formal copyright law should do, if anything, to engage with private ordering in the copyright space. I conclude that there is not one single approach that copyright law should take with regard to private ordering, but instead several different approaches. In some instances, the best option is for the law to get out of the way and simply continue to provide room for various approaches to flourish. In other contexts, the copyright statute should actively support private ordering efforts that may be jeopardized by the current regime. Private ordering may also highlight areas where the law is in need of reform. This is perhaps most noticeable in the context of fair use which has led to the proliferation of much of the private ordering. The combination of the unpredictability and expense of fair use litigation combined with potentially high statutory damages has created a series of risk-averse litigation-avoidance practices and an underutilization of fair use. Legislation may be necessary to prevent a lock-in effect of some of these industry practices and norms. In particular, courts should be barred from using these customs to set the boundaries of fair use. Revisions to the Copyright Act could also address some of the uncertainty surrounding fair use and facilitate the use of works in instances that we would like to encourage. In recent years, copyright holders have used technology and contracts to greatly limit what users can do with copyrighted works and even with uncopyrightable elements of those works. Revisions to copyright law should engage with these private efforts and protect a significant fair use zone. Copyright’s private ordering also reveals some areas of agreement which merit codification, such as faculty ownership of course materials and scholarship. Copyright law does not operate in a vacuum and any major revisions to copyright law must take into consideration the practices that have developed in its wake. As we look forward to a Copyright Act for the twenty-first century, Congress must not only consider ways to limit online piracy, but also how to protect the public’s vital space to engage with, comment on, and rework copyrighted material in light of the myriad practices that have developed in the shadow of the 1976 Act. © 2014 Jennifer E. Rothman. † Professor of Law and Joseph Scott Fellow, Loyola Law School, Loyola Marymount University, Los Angeles. This article is adapted from remarks given on April 4, 2014 as part of The Next Great Copyright Act conference held at UC Berkeley. I am grateful to Jane Ginsburg, Pam Samuelson, and Wendy Gordon for comments on that presentation. I also thank Moira Lion and Ryan Patterson for their research assistance. Please send comments to jennifer.rothman@lls.edu or jrothman@alumni.princeton.edu. 1596 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 29:1595