Copyright Essentialism and the Performativity of Remedies

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TABLE OF CONTENTS  INTRODUCTION I. REMEDY REFORM PROPOSALS    A. First Amendment Approaches: Remedies as       Procedural Safeguards    B. Law and Economics Approaches."       From Property Rule [right arrow] Liability Rule II. THE RIGHTS/REMEDY RELATIONSHIP III. THE PERFORMATIVITY OF REMEDIES IV. RIGHTS ESSENTIALISM IN MOTION:     THE REEMERGENCE OF THE FOUR-FACTOR TEST     A. eBay v. MercExchange     B. Salinger v. Colting     C. Splitting the Baby V. WHAT IS THE HARM.?     A. Distributional Consequences and        Chilling Effects     B. Lack of Transparency CONCLUSION 


In declaring that a "statutory right to exclude" is "distinct from the provision of remedies for violations of that right," the Supreme Court revealed and further entrenched a rights/remedy problem in copyright law. (1) By viewing remedies principally as a means of addressing the real-world consequences of a predicate rights violation, this distinction overlooks the role of remedies in establishing and shaping substantive rights. Although the interplay between rights and remedies has been well explored in constitutional law, (2) and scholars in other areas of private law have grappled with the rights/remedy distinction, (3) intellectual property scholarship has, for the most part, lacked critical insight into the relationship between "the creation of a right" and the "provision of remedies." (4) This Article (1) shows how the conventional framing of copyright remedies overlooks the interrelationship between rights and remedies and (2) develops a "performative" theory of remedies to explain how limitations on remedies in the name of the First Amendment might actually serve to reinforce rights-holder dominance within the copyright system.

Many copyright scholars have invoked the First Amendment (5) and related concepts (6) to rein in both the substantive and remedial dimensions of copyright. In response to widely perceived overreach by industrial copyright holders, these scholars have put forth competing normative visions of our copyright system that would push back against the steady accretion of rights and limit the consequences of infringement through a scaled-back remedial regime. For example, even if a particular use of a copyrighted work is not sufficiently "transformative" to be considered fair use, a court could deny the copyright holder's request to enjoin the distribution of the infringing work and ensure the public's access to a socially valuable good. (7)

Although efforts to rein in the "substantive" expansions of copyright--the unlawfulness of a wider range of activities for a longer period of time--have been largely unsuccessful, (8) remedy reform efforts in recent years have proven remarkably fruitful. (9) In 2006, the Supreme Court in eBay v. MercExchange prohibited categorical rules entitling a patent owner to an injunction, (10) and the Second Circuit in Salinger v. Colting extended eBay to copyright. (11) In the wake of Salinger, eBay, and other appellate decisions adopting their approach, (12) copyright's remedial structure has shifted away from the reflexive issuance of preliminary and permanent injunctions (13) toward a more rigorous analysis of the various interests impacted by the requested relief. (14) Increasingly, the question of Richemont, TECH. & MARKETING L. BLOG (Jan. 17, 2012, 11:49 AM), http://blog., and cases cited/cross-posted therein. These injunctions have generally been issued ex parte with the defendant in default. appeared in the novel (19)--the Second Circuit affirmed the rejection of fair use in a single paragraph. (20) The consequences of being deemed an infringer may be mitigated through the Salinger approach, but Salinger itself substantially increases the number of individuals potentially deemed infringers for critically reinterpreting copyrighted works. After Salinger, rights holders may not be able to obtain a quick and easy injunction against such uses, but they may be able to effect the same outcome with a demand for compensation and/or the threat of money damages. …