Journal of Intellectual Property Law


What is the scope of copyright? How far may infringement settlements go? What are the effects of these settlements on creativity and production? To what extent do these effects diverge with the goals of copyright protection? I explore these questions below. In Section II, I detail the circumstances, contributions, and historical context surrounding this problem. I also explore the nature of human creativity and highlight the overextension of copyright protection. In Section III, I develop my central thesis by explaining why this unique combination of factors will produce a tragedy of the commons, eventually creating an anticommons; how the overextension of copyright protection will stifle creativity; and how the untethered scope of copyright is contrary to the incentives behind copyright law. In Section III.B., I explain that existing defenses to infringement, both in their inception and their application, are inadequate to protect creators in light of this impending issue. Instead, a unique solution must be developed to tackle this unique problem. In Section III.C., I outline a potential solution to the complications that arise when these factors collide. I argue that the federal government should develop a three-part plan to attack this looming issue. First, the United States Copyright Office should develop a filtering system for copyrights that establishes thresholds of protection for certain groups of artistic works. Second, Congress should amend the Copyright Act to expand judicial review of settlement agreements. Third, Congress should amend the Copyright Act and expand defenses to infringement that allow for necessary borrowing to occur.