Issue 3

Author Autonomy and Atomism in Copyright Law

Digital technology enables individuals to create and communicate in ways that were previously possible only for well-funded corporate publishers. These individual creators are increasingly harnessing copyright law to insist on ownership of the rights to control their musical works, scholarly research, and even Facebook musings.

When individual creators claim, retain, and manage their own copyrights, they exercise a degree of authorial autonomy that befits the Internet Age. But they simultaneously contribute to a troubling phenomenon I call “copyright atomism”—the proliferation, distribution, and fragmentation of the exclusive rights bestowed by copyright law. An atomistic copyright system is crowded with protected works and rights, owned by rights-holders who are numerous and far-flung. This situation can raise information and transaction costs for participants in the creative marketplace, hampering future generations of creativity and thus undermining the very purpose of copyright: to encourage the creation and dissemination of works of authorship for the ultimate benefit of the public.

This article introduces and articulates the copyright atomism concept. It then places atomism in historical and doctrinal context by documenting copyright law’s encounters with proliferated, distributed, and fragmented copyright ownership from medieval monasteries to the Internet age. This history demonstrates the enduring relevance of anxiety about atomism within copyright policy, highlights countervailing concerns, and provides a framework for thinking about how to alleviate the unfortunate contemporary consequences of atomism—and how not to.

Equitable Balancing in the Age of Statutes

Equitable Balancing in the Age of Statutes examines the application of the doctrine of equitable balancing in determining whether to issue injunctions for violations of federal statutes. For the past several decades, the Supreme Court has held that the decision whether to enjoin violations of federal laws ordinarily should be determined by “balancing the equities,” in which courts weigh the hardship that the plaintiffs would face if an injunction were denied against the hardship the defendants would face if an injunction were granted. The Court has justified the doctrine by declaring that it is a longstanding equitable practice dating back centuries, perhaps since time immemorial. The Court most recently applied the doctrine in Winter v. Natural Resources Defense Council, 129 S.Ct. 365 (2008), in which environmentalists sought to enjoin the Navy from conducting antisubmarine training exercises using a type of sonar system alleged to be harmful to whales. The Court held that, even if the Navy was acting in violation of federal law, no injunction should be issued because, as the Court saw the balance of equities, national security trumps environmental protection.

The Article argues that the Supreme Court’s experiment in applying equitable balancing in statutory contexts should be abandoned because it conflicts with separation-of-powers principles. The Article seeks to debunk the Court’s premise for applying equitable balancing in statutory cases——that the doctrine has been part of equitable practice for many centuries. In fact, equitable balancing is a relatively modern phenomenon, which first appeared in state common law cases during the period of rapid industrialization following the Civil War, and it only gained general acceptance in the 1930s. It was adopted for the express purpose of expanding judicial discretion to protect industries against injunctions in nuisance actions to stop air and water pollution. History is repeating itself because the Supreme Court adopted equitable balancing in federal statutory cases, beginning in 1982, to expand judicial discretion to excuse violations of federal statutes when, in the courts’ judgment, countervailing policy interests outweigh the interests served by federal statutes. Once equitable balancing is recognized as a recent phenomenon adopted to enlarge judicial policymaking authority, it becomes apparent that applying the doctrine in federal statutory cases raises substantial unresolved separation-of-powers problems. Among other things, the doctrine allows, if not requires, that courts make ad hoc assessments of the relative importance of apparently conflicting statutory policies.

Deciding on Doctrine: Anti-miscegenation Statutes and the Development of Equal Protection Analysis

This note explores why the Warren Court chose the path it did to invalidate anti-miscegenation laws. Using evidence from the papers of three of the Justices, it argues that the Court was very close to announcing a per se rule against racial classifications, as Stewart’s concurrence advocated in the context of criminal laws. More generally, this note analyzes the Warren Court’s treatment of anti-miscegenation statutes with the object of gaining perspective on the relationship between decision and doctrine: Assuming that Justices are in agreement as to which party should prevail, what factors, legal and nonlegal, can influence a Court’s preference for one doctrine over another? Had the Court followed Stewart’s reasoning, review of criminal statutes, at least, would not require even a cursory analysis of the legislature’s purpose once a racial classification was detected. Loving’s now-controversial place in right-to-marriage jurisprudence, however, would have been minimized, if not eliminated. It may be difficult to predict the ramifications of doctrinal choices, particularly with respect to the interaction between equal protection, due process, and fundamental rights. Ultimately, this paper argues that the Warren Court showed a preference for a less rule-like approach to equal protection analysis in part because the conditions surrounding desegregation exacerbated the difficulty of analyzing the scope of rules. Recovering the circumstances under which the Warren Court viewed its potential paths to a ruling against Virginia in Loving may help us to understand how and why Courts resolve such problems in particular ways.

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