Douglas Y'Barbo

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The purpose of this Article is to offer a single coherent model that explains copyright law's essential features and to apply the model to reconcile the apparently disparate infringement decisions that comprise contemporary copyright law.

The fundamental premise underlying copyright law-and the one that I intend to dislodge-is that a copyright is a limited property right in relation to the author's original text. The thesis of this Article is that a "copyright" is not an enforceable property right in relation to a particular work of authorship or the expression embodied in it (i.e., "a text"). Instead, I shall demonstrate that it is a far more qualified property right in relation to a legally structured market position. Put another way, copyright infringement is best viewed as an unfair intrusion upon the copyright owner's actual or putative market position from which to exploit his or her text, rather than as an isolated, unauthorized borrowing of original portions of the copyrighted text. One material implication of this view is that copyright law is far more closely related to common law misappropriation of the type found in INS v. AP than to a pure property regime (for example, patent law).