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23 Stan. Tech. L. Rev. 1 (2020)

handle is hein.journals/stantlr23 and id is 1 raw text is: Copyright and the 1% Glynn S. Lunney, Jr.' 23 STAN. TECH. L. REv. 1 (2020) ABSTRACT No one ever argues for copyright on the grounds that superstar artists and authors need more money, but what if that is all, or mostly all, that copyright does? This article presents newly available data on the distribution of players across the PC videogame mar- ket. This data reveals an L-shaped distribution of demand. A relative handful of games are extremely popular. The vast majority are not. In the face of an L curve, copyright overpays superstars, but does very little for the average author and for works at the margins of prof- itability. This makes copyright difficult to justify on either efficiency or fairness grounds. To remedy this, I propose two approaches. First, we should incorporate cost recoupment into the fourth fair use factor. Once a work has recouped its costs, any further use, whether for follow-on creativity or mere duplication, would be fair and non-infringing. Through such an interpretation of fair use, copyright would ensure every socially valuable work a reasonable opportunity to recoup its costs without lavishing socially costly excess incentives on the most popular. Second and alternatively, Congress could make copyright short, nar- row, and relatively ineffective at preventing unauthorized copying. If we refuse to use fair use or other doctrines to tailor copyright's protection on a work-by-work basis and instead insist that copyright provide generally uniform protection, then efficiency and fairness both require that the uniform protection be far shorter, narrower, and generally less effective than it presently is. ' Professor of Law, Texas A&M University School of Law. I would like to thank Chris Buccafusco, Mala Chatterjee, Abraham Drassinower,Joseph Fishman,Jeanne Fromer, Kristelia Garcia,Jim Gibson, Wendy Gordon,Justin Hughes, Mark Lemley, Rob Merges, Jennifer Roth- man, Matt Sag, Zahr Said, Pam Samuelson, Jessica Silbey, Christopher Sprigman, Rebecca Tushnet, and participants at the 2019 Works-in-Progress Intellectual Property Colloquium and the 2019 Copyright Scholars Roundtable for helpful comments and suggestions. Special thanks to Zahr Said for the title suggestion. 1

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