Copyright and Its Rewards, Foreseen and Unforeseen

In Foreseeability and Copyright Incentives, Professor Shyamkrishna Balganesh argues that if the exclusive rights of copyright are justified because they create an ex ante incentive, then the exclusive rights — and the financial yields that follow — should be limited to the uses of the copyrighted work that were foreseen by the creator at the time of the work’s creation. In this response, Professor Justin Hughes argues that this idea initially sounds more radical than it actually is. After exploring the parameters of the Balganesh proposal, he describes how, despite its appeal, it is incompatible with how Congress has expressly written the copyright grant; how nonetheless we might try to integrate the proposal into our fair use doctrine; and how, despite rationality being bounded, Balganesh is mistaken that authors cannot factor unforeseen consequences into their ex ante expectations of the rewards that copyright dangles in front of them. He concludes that in the context of current copyright scholarship, the proposal is yet another clever strategy — albeit one that might be cumbersome and ineffectual — to produce what Congress and the Supreme Court have denied copyright minimalists: a shorter copyright term.