Thursday, December 13, 2018
Andrew Gilden, Willamette University, is publishing Copyright's Market Gibberish in the Washington Law Review. Here is the abstract.
There is a growing contradiction at the core of copyright law. Although courts and scholars frequently assert that copyright is only about authors’ economic interests, copyright law routinely protects interests such as privacy, sexual autonomy, reputation, and psychological well-being. It just uses the language of money and markets to do so. This Article shows that copyright law routinely uses economic rhetoric to protect a broad range of noneconomic interests — a practice it names “market gibberish.” Market gibberish muddies copyright jurisprudence and has sweeping practical, conceptual, and distributive impacts. In a wide range of copyright cases, plaintiffs use economic and market-based theories to achieve goals that have little do with economic rights. If plaintiffs can plausibly tell a story of market harm, courts will often respond by manipulating economic rhetoric to provide the desired outcomes. For example, courts have protected celebrities’ rights to permanently suppress wedding photos and sex tapes, under the theory that they have the “right to change their mind” and someday reap profits from these materials. When courts engage in market gibberish, they obscure the diverse range of economic, emotional, and cultural interests at stake within copyright law. Instead of dogmatically hewing to economic incentives and market rhetoric, this Article argues that courts should engage in a more transparent examination of the interests actually at stake in copyright disputes. This Article makes three primary contributions. First, it provides the first comprehensive account of market gibberish and shows, through detailed analysis of case law, that litigants have long used market gibberish to advance their noneconomic goals. Second, it shows how the prevalence of market gibberish erodes copyright theory and practice. Rather than rigorously police market interests — as many scholars have proposed — this Article argues that courts should more explicitly engage with the diverse motivations for asserting copyright infringement. An interest-transparent approach would shed light on the complex normative work copyright is already doing and better distinguish between legitimate and abusive copyright assertions. Finally, this Article shows how market gibberish contributes to inequality under copyright law. A plaintiff’s ability to tell a story about potential markets is often limited to the most powerful rightsholders — famous artists, celebrities, and corporate creators — and not to the wide range of vulnerable and lesser-known individuals who are turning to copyright to stop the viral spread of their words, images, or voices.
Download the article from SSRN at the link.