Casting Aspersions

Document Type

Article

Publication Date

2026

Abstract

During the initial three-quarters of the 20th Century, the copyright bar of the United States was small, homogenous, and cordial. 50 years later, it is larger, more diverse, polarized, and hostile. In this essay, I suggest that one factor contributing to the hostility is copyright lawyers' disappointment with the laws that Congress encouraged them to craft for themselves. Although copyright lawyers repeatedly negotiated the substance and language of copyright legislation to meet their own specifications, they expected those laws to deliver too much and felt betrayed when the laws failed to work as they had hoped.

Owners of copyrights claim that the copyright law should give them full control of all commercially valuable uses of their works. The law has never secured control that extensive, but over the past 60 years, copyright owners have tried repeatedly to fix that. They have believed that they had succeeded in markedly improving their position. Those efforts proved disappointing. Representatives of copyright owners have expressed that disappointment with grievance and have come to believe that the interests they see as their opponents must be acting in bad faith.

The copyright system is currently facing important challenges. I suggest that if copyright lawyers can't move past their suspicion and mistrust, any proposed response to those challenges is likely to make them worse rather than better.

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