What Copyright Can't Do

Abstract

Copyright has become a powerful regulatory regime for modern American life. Copyrighted works, including text, images, video, sounds, music, and software, coupled with routine, frictionless copying, form a large part of the information, cultural and social context, and infrastructure of our increasingly digital society. Copyright law’s powerful remedies are now positioned to intervene in a wide range of everyday activities. As a result, scholars, policymakers, and advocates have increasingly called for modifying and applying U.S. copyright law to solve a wide range of public policy problems, from vindicating disability rights to protecting privacy to promoting competition among wireless carriers. But there are some things that copyright can’t do. This Article identifies practical limits in the structure of contemporary copyright law and doctrine that constrain copyright’s capabilities for solving policy problems beyond copyright’s usual ambit. From these limits, this Article generates a novel taxonomy of regulatory tools missing from copyright law’s toolkit for addressing the harms and benefits of creative works and uses. These interventions—including regulating harmful creation and compelling beneficial creation, subsidizing creation and supporting creator welfare, preventing harmful uses of works by rightsholders and licensees, compelling licensed uses, and facilitating and liberating beneficial uses—are functions that depend on interventions from outside copyright law. This Article illustrates the important policy consequences of copyright’s missing capabilities via case studies where scholars, policymakers, and advocates have deployed copyright doctrines in nontraditional contexts. These examples include remediating works into accessible formats for disabled consumers, stopping the creation of child sexual abuse material, regulating the nonconsensual distribution of intimate imagery, governing the development of generative artificial intelligence, allowing consumers to switch cell phone networks, and promoting good-faith security research. These examples show that copyright law’s underappreciated structural limits often impede efforts to solve public policy problems with novel copyright interventions.