Comments on UNBUNDLING THE “TORT” OF COPYRIGHT INFRINGEMENT by Patrick R. Goold Prof. Matthew Sag Loyola University School of Law

Table 1: Analytical Features of Copy-Torts Consumer Copying Competitor Copying Expressive Privacy Invasion Artistic Reputation Injury Creative Control Legally Protected Interest Charging consumers a fee for some uses Confidentiality Artistic reputation Control Legal Wrong Copying to make a protected use. Copying causing demand diversion Publishing Copying causing to reputational injury Making use without consent Conduct or Outcome- Responsibility CR: Copying for certain uses triggers liability OR: Copying must cause diversion. CR: Publishing triggers liability. OR: Copying must cause reputational injury CR: Decision making triggers liability. Appropriate Analogy Trespass to Land Unfair Competition Publication of Private Facts False Light /Defamation Conversion

Insight #1 Copyright rights are not absolute Disaggregating copyright infringement into several copy-torts emphasizes that ‘rights’ are not absolute, the harms are mostly relational. Conduct or Outcome- Responsibility CR: Copying for certain uses triggers liability OR: Copying must cause diversion. CR: Publishing triggers liability. OR: Copying must cause reputational injury CR: Decision making triggers liability.

Insight #2 Consumer copying and competitor copying cases do seem to be treated differently. Consumer copying – Like trespass – Real question is substitution – Implies a narrower scope of derivatives Competitor copying – Like unfair competition – Real question is destructive free riding – Expressive substitution is a key concern – But implies a broader scope of licensable derivatives?

Potential applications Consumer/competitor – DVR by consumer is fair use, but R-DVR is not? – Consumer slingbox is not copyright infringement (not a public performance) but Aereo’s internet retransmission is copyright infringement?

Legal wrongs may not be distinct The right to make a derivative work based on the copyrighted work makes these legal wrong bleed into one another.

Will the Supreme Court have any love for taxonomies? Compare to ‘looks like a cable system’ in Aereo