COPYRIGHT AS MARKET PROSPECT.

• Author: Balganesh, Shyamkrishna
• Position: ARTICLE

INTRODUCTION 444 I. THE FORGOTTEN TORT ACTION: INTERFERENCE WITH A PROSPECT 451 A. Tortious Interference in General 452 B. The Distinctiveness of the Action for a "Prospect" 458 1. Identifying a Protectable Opportunity 462 2. Interference as Wrongdoing 465 C. Underlying Rationale(s) 468 1. Economic Justifications: Incentives and Deterrents 468 2. Commercial Morality 470 3. Actual/Ostensible Ownership 471 II. COPYRIGHT LAW AS TORTIOUS INTERFERENCE WITH A PROSPECT 474 A. Homology as Interpretive Legal Theory 474 B. Incentives, Property, and Market Morality: Common Goals 478 C. The Homology 482 1. The Market (for the Work) as Prospective Economic Advantage 484 2. Copying as Interference and Improper Means 488 3. Volition, Subconscious Copying, and Intention 492 4. Fair Use as Privileged Interference 497 III. IMPLICATIONS AND LESSONS 503 A. From Incentive-Creation to Incentive-Protection 503 B. The Relationality of Right and Liability 507 C. Trusting Courts 509 CONCLUSION 512 INTRODUCTION

Ever since its origins in the eighteenth-century, Anglo-American copyright law has attempted to understand its entitlement structure through the idea of property. Originally described as a form of "literary property," (1) courts and scholars today continue to analyze copyright's grant of exclusivity through various doctrines from the common law of property. (2) Ideas and concepts deriving from trespass to land and chattels, (3) the law of licenses, (4) first possession, (5) choses in action, (6) adverse possession, (7) and more recently the law of theft, (8) feature rather routinely in copyright jurisprudence and scholarship. Indeed, so pervasive is the influence of property thinking that the copyright statute's refusal to cover certain categories of works at one time even raised concerns to some about "private property" being "taken" under the Fifth Amendment. (9) More recently, scholars have shifted their emphasis from the law of property to tort law to understand copyright.") The move in this direction was initially prompted by a focus on property torts--i.e., tort doctrines that protect private property such as trespass--since courts sporadically described copyright infringement actions in these terms. (11) In due course, the comparisons expanded to tort doctrines that were less about property protection and more about balancing the plaintiff and defendant, such as the doctrines of negligence and nuisance. (12) This latter move was underwritten by the increasingly instrumentalist and utilitarian orientation that American copyright thinking has taken on in the last few decades, which emphasizes the need to balance copyright protection against ease of access. (13) The common law has thus proven to be a fertile source of conceptual guidance for copyright jurisprudence.

All the same, copyright thinking has unduly limited itself in focusing principally on property-based or balance-driven aspects of the common law of torts. The focus on trespass, negligence, and nuisance--all mainstream and well-understood doctrines--has certainly meant that copyright law has never had to independently establish the legitimacy of the common law doctrines to which it is looking; it has also limited such reliance almost entirely to the structural realm. In other words, the common law has thus far proven to be helpful in shedding light on how copyright law might develop mechanisms to realize its underlying objectives that are predetermined. Yet the connection has almost never been used to say anything of significance about the very rationality, normative desirability, and construction of those objectives. This is for an obvious reason: each of the common law areas hitherto used to analyze copyright jurisprudence seeks to realize objectives that are illsuited--without significant adaptation--to those of copyright law.

Consider efforts to understand aspects of copyright law through negligence doctrine. Negligence law is seen to be about deterring harmful behavior, (14) spreading the costs of harms once they occur, (15) or realizing corrective justice between the wrongdoer and the victim through a regime of liability. (16) Extended to copyright, each of these ideals proves to be grossly incomplete. Unlike the tangible harm with which negligence commonly concerns itself, the harm that copyright seeks to prevent is a contested and multifaceted issue. (16) Similarly, cost-spreading in copyright requires an account of when and how something is a cost to begin with (rather than a benefit or an accepted reality of human interaction) since the harm at issue in copyright is either notional or predictive. Further, the ideal of corrective justice is itself dependent on an underlying normative equilibrium that must be justified by an altogether independent set of principles about rights and wrongs. (18) Consequently, to the extent that concepts from negligence law are of utility to copyright, their contribution lies primarily in their ability to structure copyright doctrine and thinking. This is seen to allow copyright to further its values that are in turn derived from other (i.e., non-common law) sources.

Copyright's use of the common law has been principally in the form of a structural analogy so far. Yet closely connected to, but nonetheless distinct from an analogy, is the concept of a homology. An analogy focuses on a resemblance between two or more concepts or ideas, but makes no claim as to the relationship between the objects of the comparison. (19) The similarity may be attributable--in its entirety--to coincidence. Consequently, the process of analogizing one concept or doctrine to another requires no account of why the comparison is independently justified, beyond the obvious existence of the similarities at issue. Drawn from evolutionary thinking, a homology on the other hand focuses on a resemblance between two or more ideas but in addition makes an implicit claim about the common origins of those ideas. (20) It claims that the similarity under scrutiny is apparent because of a commonality in source. That common source may be a shared institutional origin or a shared set of motivating goals and ideals. As such, the explanatory burden of a homology is significantly higher than that of a mere analogy.

In this Article, I argue that the common law can be more than a structural analogy for copyright thinking; it can also provide a useful homology for copyright law. The basis for such a common law homology is to be found, not in the well-worn doctrines of property and tort law, but instead in an under-analyzed common law doctrine: tortious interference with a prospective economic advantage. This doctrine is a close sibling of a claim known as tortious interference with contract or "inducement to breach," which allows recovery when a third party defendant intentionally interferes with a contract between two others and procures a breach. (21) While inducement to breach is premised on the existence of a valid contractual relationship between two parties, (22) tortious interference with a prospective economic advantage--or "tortious interference with a prospect" for short--allows a claim when the economic benefit that was interfered with by the defendant was itself entirely probabilistic. (23)

While initially developed to render the defendant's liability independent of the formal validity of an underlying contract, tortious interference with a prospect has since expanded to cover a variety of other prospective situations. (24) In each of these situations, the law attempts to balance a defendant's behavior that caused the economic loss against a putative zone of probable benefits that the plaintiff is seen as entitled to. (25) Such balancing, in turn, engages a variety of important considerations such as the bad faith of the defendant, concerns about freeriding, the incentive effects of protection (and non-protection), its effect on the general public interest and social welfare, and concerns about the types and norms of competition in the market at issue. (26) In order to realize these goals contextually, tortious interference with a prospect has come to develop a nuanced doctrinal structure that is uniquely adapted to the probabilistic nature of the benefit and the balancing exercise involved. Owing to the entirely probabilistic nature of the prospect that is being protected, the tort identifies the boundaries of that prospect ex post, in an effort to produce an extremely nascent form of a property-like interest (in the prospect). (27) It then protects this interest with due caution against overreach by focusing primarily on the defendant's behavior and its actual and potential effects on the prospect through the highly tailored individual elements of the action. (28)

Reduced to its core, copyright law operates in an almost identical fashion, and for similar reasons. Like tortious interference with a prospect, it protects a zone of probabilistic benefits--the market for a work of expression--by assigning it to the author/plaintiff. Instead of just treating the work as the object of a property interest, copyright law focuses on protecting the prospect through an elaborate focus on the nature of the defendant's actions that interfere with the realization of the prospect. Copyright law has thus never treated all uses of the protected work as actionable. (29) This focus on the prospective benefit (rather than the work as property) is captured in the highly specified forms of behavior (i.e., reproduction, distribution, performance, etc.) that define the extent of each of copyright law's rights, the elaborate apparatus that constitutes its infringement analysis, and the considerations that motivate its balancing exercise under the rubric of fair use. In short, each of the common law's analytical components that are seen in tortious interference with a prospect finds strong correspondence in accepted copyright doctrine.

Perhaps most importantly...