Copyright as trade regulation

This Article identifies conflicting strands of the public interest in copyright, then proposes to mediate those conflicts by conceiving of copyright law as a Prohibition against acts of unfair competition. Under this conception, copyright infringement would consist of the infliction of competitive harm In a "relevant market, "'a market this Article proposes to define by asking what rights creators are entitled to expect when they engage in the act Of creation. As regards "printed works" (that is, works created for the purpose of existing in copies), this Article argues that creators are not entitled to expect the light to exclude others from engaging in acts of private copying, acts which, standing alone, do not serve as market substitutes to any significant extent. Instead, creators are entitled to expect only the right to distribute those copies to the public-for only acts of public distribution are behaviors that threaten to cause the sorts of competitive harms that Congress should seek to redress. This Article concludes by revealing how such a copyright law might help to resolve a few of the issues at the very center of the copyright debate: the pervasiveness of personal, copying, the rise of contractual and technological access controls, and, of course, the "death" of the fair use defense.