Michael Kenneally, ‘Commandeering Copyright’

Abstract:
This Article examines the increasingly common phenomenon of copyright commandeering, which is the use of standardized contracts and other legal devices to reassign, on a massive scale, the entitlements initially assigned by copyright law. Though many commentators have discussed examples of this phenomenon, it is more widespread than existing commentary suggests. Users of copyrighted works as well as copyright owners have attempted to reassign a wide range of copyright entitlements.

Yet although previous writers have taken too narrow a view of what qualifies as commandeering, they have simultaneously criticized commandeering with arguments that are too broad. This Article shows where such criticisms overreach and proposes a new response to commandeering that focuses on the practical differences between property rights, such as copyright law provides, and contract rights created through private actions. Courts should refuse to enforce those large-scale copyright entitlement transfers that operate as alterations of property rights to the detriment of individuals who have not consented to the change.

Michael E Kenneally, COMMANDEERING COPYRIGHT. Notre Dame Law Review, Vol. 87:3, 1179 (2012).

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