<i>Hachette v. Internet Archive</i>: How and Why the Courts Broke Copyright

The exclusive rights of copyright owners have always been overbroad which, if read literally, would make many common activities illegal (e.g., reading a book during library story hour, making a mixed tape, etc). What has prevented overreach is a social contract. The public at large has been tolerant of copyright’s broad grant of rights because of the understanding that the rights would be exercised only in very limited circumstances. The rights were not intended to empower copyright owners to undermine the overwhelming number of reasonable uses of copyrighted works that make society productive. For centuries, rightsholders and courts have generally abided by the contract, the former in showing restraint in suing against reasonable uses and courts by permitting reasonable uses through the application of fair use.\nHachette breaks that contract by holding that a buyer of a work receives no greater deference in use than someone who has not purchased the work. Instead of the right to use the content purchased consistent with the number of copies purchased, a purchaser may now use what they have purchased only in ways that have no commercial alternative. Never before Hachette has it been possible to claim market harm without proving that the number of copies used exceeded the number of copies paid for. On September 4th, that changed and eliminated the unspoken protections for reasonable use that society has long relied upon.\nThis paper will explain why and how the appellate court’s decision in Hachette broke copyright’s social contract. Part I discusses why the social contract is necessary for copyright to retain its legitimacy. Part II looks at how human nature, mental shortcuts, and novelty interact in copyright, creating an environment with constantly increasing pressure to ignore the social contract. Part III analyzes the decision in Hachette, points out the facts that the Court missed, and illustrates how the exclusion of these facts led to the Court’s breaking of copyright’s social contract. Part IV considers possible ways to counter the breach.