COPYRIGHT AS LEGAL PROCESS: THE TRANSFORMATION OF AMERICAN COPYRIGHT LAW.

• Author: Balganesh, Shyamkrishna

INTRODUCTION 1103 I. AMERICAN COPYRIGHT LAW: PUBLIC LAW IN DISGUISE 1113 A. Private Right for a Public Purpose 1114 B. Market Regulation as a Goal 1117 C. Divided (and Coordinated) Lawmaking 1119 II. THE PRIVATE LAW CONCEPTION OF COPYRIGHT 1123 A. Classical-Era Copyright Law 1125 B. Copyright Law in the Time of Legal Realism 1135 III. THE LEGAL PROCESS TURN IN COPYRIGHT 1145 A. Legal Process Theory 1147 1. The (Collective) Instrumentalism of Law 1149 2. Institutional Settlement and the Primacy of Legislation 1150 3. The Structured Collapse of the Private Law/Public Law 1154 Distinction B. Remaking American Copyright Law 1158 1. The Triumph of Copyright Collectivism 1161 2. The "Limits" of Copyright Adjudication 1165 3. Administering the Copyright System with Expertise 1168 IV. DEALING WITH A HYBRID COPYRIGHT SYSTEM 1173 A. Protocols for Institutional Settlement in Copyright 1174 B. Reasoned Elaboration as the Elaboration of Copyright 1176 Principles C. Developing an Administrative Copyright Law 1178 CONCLUSION 1180 INTRODUCTION

Modern American copyright law is not what it was less than a century ago. Not only is the substantive content of current copyright law characterized by an overbearing complexity, but the proliferation of institutional and private actors within the system has fundamentally transformed its own understanding of law and lawmaking, and thereby the very goals of copyright law. Copyright's formal blackletter directives undoubtedly originate in the text of the Copyright Act of 1976, (1) the most detailed copyright statute ever enacted in the United States. (2) Nevertheless, the statute is in many important respects underinclusive and incomplete. This reality has required federal courts to develop rules and principles for different copyright questions, sometimes working within the interstices of the statute's directives and congressional intent, (3) and at other times out of whole cloth, guided by their own sense of the system's values. (4)

Adding to this legislative-judicial dynamic is the role that the Copyright Office plays in developing copyright rules. As the agency with expertise in the area, the Office regularly intervenes in copyright disputes, advises Congress and other agencies on copyright matters, offers its own interpretation of statutory and judge-made law, and engages in notice-and-comment rulemaking in different specialized domains. (5) And then there is private ordering. Customs, norms, and industry-wide collective practices continue to flourish and grow in a wide range of domains and thereby introduce additional constraints on the behavior of actors. (6) Some of these norms and practices find their way into the formal content of copyright's rules through judicial opinions, but most thrive independently. (7)

Determining what U.S. copyright law actually says about an issue is therefore an indelibly complex exercise. It involves navigating the roles of the system's various institutional actors, unraveling their goals for the system and their potential for realization, and then understanding how their respective directives interact and coalesce to collectively constitute "copyright law." Yet, this complexity is hardly just an incidental byproduct of the system. As this Article argues, it is instead the result of a particular and unique conception of copyright law that has come to dominate modern American copyright thinking ever since the second half of the twentieth century. Built around the ideas of the Legal Process School of legal analysis that was deeply influential in the 1950s and 1960s, (8) this approach to copyright law treats it principally as a form of public law, wherein the advancement of the overall public welfare takes normative precedence over--and thereby motivates--the promotion of private interests, i.e., the interests of the author and of the user. Public welfare is in turn understood as a multifaceted goal, constructed and realized through the involvement of numerous public institutions that bring different collectivist values to the table, while imposing crucial checks on each other's power and legitimacy.

The modern legal process conception of copyright law is in stark contrast to the approach that preceded it, which viewed the subject as one of private law. Areas of private law--such as tort law, contract law, and property law--are characterized by their primary emphasis on the private parties involved in a legal dispute, and their individual interests at stake. (9) To the extent that they care about broader social goals and policies, they do so only ever through the lens of the private dispute at hand. (10) Within copyright law, this meant a focus on the author's rights and the defendant-user's privileges and immunities, with the broader public welfare a welcome byproduct of those entitlements that was nonetheless secondary in importance.

Late nineteenth- and early twentieth-century copyright case law and commentary epitomized this private law understanding. In a little known essay published at the turn of the century, Christopher Columbus Langdell characterized copyright law as the public's (i.e., the "State['s]") intervention on behalf of a private purpose, through its grant to authors of a "power to enforce" a prohibition against unauthorized copying. (11) Courts in this era echoed these ideas, implicitly acknowledging that copyright was about balancing exclusivity and use, as between plaintiff and defendant. (12) Copyright law was thus, first and foremost, a body of private law regulating a horizontal relationship. By the middle of the twentieth century, this would change dramatically. One mid-twentieth century Supreme Court opinion captured the shift most dramatically when it unequivocally concluded that in copyright law the author's benefit was little more than a "secondary consideration," less important than copyright's "public purpose." (13) The private interests at issue were, in other words, merely in service of a public purpose, copyright's "ultimate aim." (14)

The roots of this fundamental transformation are to be found in important developments in American legal thinking that took place after World War II. While the Legal Realists of the 1930s and 1940s had succeeded in debunking the claim that legal reasoning was an autonomous enterprise wholly immune from politics, (15) they had at the same time failed to propose a constructive alternative in its place. The identification of law as rampantly indeterminate and driven by purely instrumental considerations seemed grossly unsatisfying to many, especially in light of the events of the war. (16) It is in this climate that the Legal Process School emerged, principally in the work of Lon Fuller, Henry Hart, and Albert Sacks, all professors at the Harvard Law School. (17) While acknowledging the instrumental nature of law, the Legal Process School argued that the content of the law was to be determined by the appropriate allocation of decisionmaking authority among different institutions, a principle it described as "institutional settlement." (18)

Institutional settlement allowed the law to move seamlessly between the is and the ought on different substantive questions, enabling it to grow organically, while maintaining its rational edifice. (19) Whether something was settled law was seen as a question of who (i.e., which institution) had the authority to determine it, in turn a product of whether that institution ought to be considered the right one for the particular substantive question at issue. Institutional settlement embodied a dynamic conception of law that consciously merged means and ends, premised on the idea that law is a continuous "doing of something." (20) Such allocation would facilitate each institution (within a legal area) to develop the law in accordance with its own core competence, thereby enabling the law as a whole to further its avowed goals, in turn identified based on such competence. (21) Institutional settlement therefore directly addressed the indeterminacy of legal rules through a principled allocation of lawmaking authority, which at once acknowledged the role of discretion while also evidencing a strong commitment to the rule of law.

The Legal Process principle of "institutional settlement" had an important prescriptive component to it. And this was the recognition that while courts were principled decision-makers in the adjudicative setting, they nonetheless had obvious limitations in their problem-solving and lawmaking capacities. (22) Congress was instead the "principal agent of change and policy development" which it realized through statutes. (23) Courts were to operate within the interstices of congressional enactments and defer to other institutions in a given area whenever needed. Law was therefore recognized to be a "purposive" enterprise, with every legal doctrine embodying an objective, and courts tasked with ascertaining that purpose and elaborating on it. (24) Implicit in this formulation of law as a purposive enterprise was the belief that when it came to statutory regimes--areas of law created by Congress through legislation--the purpose of the law was to be found in the statute. (25) The soundest "starting point" in identifying the policy of a legal area was therefore the statute, which courts had to accept, elaborate on, or supplement as needed in a purposive manner. (26)

Institutional settlement as such was, of course, far from suggesting a mechanistic role for courts. All the same, it marked a genuine departure from the prior Legal Realist accounts, which appeared perfectly fine with juricentric common law rule development wherein courts would bring their own views of policy and purpose to bear on legal doctrine. In the Legal Process School, courts were "valorize[ed]" for their strengths as principled decisionmakers, (27) with the simultaneous recognition that in important respects those principles might be overridden by "policy...