The Copyright Paradox
Abstract
Over the last decade, writers begun to try and understand the other side of copyright, sometimes called its competition policy, communications policy, or regulatory side. This paper focuses attention on a crucial problem familiar to antitrust courts that is becoming more clearly important to copyright decisions. In both copyright and antitrust, a central question is how important intent is. Judges, stated slightly differently, face a choice between what we can characterize as the bad actor and welfarist models of deciding cases. What we can call the bad actor approach punishes alleged wrong-doers based on the mens rea of the suspect, and the prospect of harm to favored sectors of the economy, like small businesses (in antitrust) or the entertainment industries (in copyright). A second, or welfarist approach calls for judges to generally ignore intent or bad behavior in exchange for a more disciplined focus on questions of industry economics and consumer, or user welfare.
Over recent years the Supreme Court has steered copyright doctrine closer to an intent or bad actor premised analysis. While politically attractive, the long term effects of this approach can be expected to be pernicious.