Writing in The Economists' Voice (see yesterday's post), Richard Posner makes a crucial point about the Eldred case in "Eldred and Fair Use."

The big problem of extended copyright is not that the right to use intellectual works must be paid for, but that the chains of title become obscure. Potential uses are aborted by the transaction costs of finding the owner more than by any actual fees involved. The major advantage of putting a work into the public domain is that any potential user avoids these transaction costs, not that the work becomes free.

PFF has made a similar point, but without suggesting a solution. Posner has a solution -- an adaptation of the doctrine of Fair Use. If the owner of a copyright has not provided notice of his continued rights by entering his name and address in a copyright registry, then reproducing it becomes, automatically, a Fair Use. This will weed out the economically valuable rights from the valueless, and, of course, will also reduce to zero the costs of finding the owners of the valuable. Disney will maintain its copyrights on Mickey Mouse, but the price of achieving this will not involve the continuing coverage of thousands of works of little or no value.

Posner points out that Fair Use is a judicially-created doctrine, and that the congressional codification of it in 1976 was not meant to be exclusive, so a court, acting in the great tradition of the common law, could evolve such a solution to the problem. If Congress liketh not the development, then Congress could over-rule it.

It is a sound idea, akin to but more realistic than Lessig's suggestion that a law be enacted to require periodic re-registration of copyrights. Nor is it really much of a legal stretch. Fair Use thinking has always had a huge transaction-cost element, and rightly so.

So let's find a plaintiff, and head for the Seventh Circuit, where Judge Posner may be found.

posted by James DeLong @ 2:01 PM | General

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