Copyright’s Asymmetric Uncertainty

Conventional wisdom holds that the pervasive uncertainty in copyright law is intolerable because it inhibits expression—those who would engage in lawful uses of copyrighted works abstain for fear of crushing liability. The argument is right but for the wrong reasons. It is based on the often-unstated assumption that users who face liability are risk averse. But the leading account of decision making under uncertainty suggests that those facing potential losses are in fact risk seeking, while those facing potential gains are risk averse. In light of this asymmetry in risk preferences, copyright’s asymmetric distribution of uncertainty—salient issues for users are opaque while those for copyright holders are clear—promotes access while preserving copyright holder incentives. Users discount the risks of boundary crossing because the doctrines of access make the boundaries unpredictable, and copyright holders overvalue their entitlements because they are reliable, protecting against the most feared uses of their works with predictably potent remedies. In short, the system exploits asymmetric risk preferences through its asymmetric distribution of uncertainty. Good economics does not always make good law, however. The Rule of Law ideal also values clarity in an asymmetric way: the need for notice is at its zenith where the law imposes punishment and its nadir where the law confers benefits. Even if it is true that copyright’s asymmetric uncertainty promotes maximal expression, forcing users to shoulder the burdens of uncertainty in the name of social welfare evinces a disrespect for user autonomy that is inconsistent with the Rule of Law.