Selective Exploitation, Kristelia Garcia, Professor, Georgetown Law School

Copyright law affords authors a series of exclusive rights intended to incentivize creation for the public's benefit. The conventional target for the assertion of those rights is the infringing copyist who would otherwise free-ride on the rights holder's work. But in an era of digital content characterized by vertical integration between content producers and distribution platforms, rights holders increasingly assert their exclusive rights along a spectrum that runs well past enforcement against infringers: from leveraging exclusivity against paying licensees, to declining to exploit acquired works, to withdrawing completed works from public view altogether.

Some of this activity sits comfortably within the copyright bargain. When a vertically integrated streaming platform pulls a hit TV series from a rival service and makes the show exclusive to its own fledgling platform in order to drive subscriber growth, it asserts its copyright not against a would-be infringer, but against a paying licensee. The result is a reallocation of access: viewers must look elsewhere, and perhaps pay more, but the work remains available. Other assertions go further: When a platform acquires the rights to a series, declines to produce another season, and simultaneously refuses to license the property to any other studio, it uses copyright not to support creation but to suppress it. And when a movie studio writes off a completed film for an accounting loss instead of releasing it, it renders the work entirely unavailable, converting copyright into a private- rather than a public-facing benefit. This Article posits that while the copyright bargain tolerates time-limited exclusivity and the reallocation of access, it also presupposes eventual public access, such that total, indefinite non-availability exceeds the permissible scope. 

Unfortunately, the assertion of copyright in ways that suppress and even "disappear" content doesn’t necessarily run afoul of any existing statute or regulation. Contract law governs the dealings between studios, platforms, and talent, but it does not speak to the public's interest in access, nor to the competitive health of content markets, and no extant body of law readily lends itself to addressing either concern. To the contrary, copyright law allows rights holders to license their content to anyone, or to no one, on whatever terms they wish. Through a series of contemporary examples, this Article explores the underexamined consequences of content enclosure, suppression, and disappearance in vertically integrated streaming markets, and proposes a series of interventions intended to preserve creative incentives while protecting both public access and market competition.

Kristelia García is the Leo George Professor of Communications, Entertainment, and New Media, and an Anne Fleming Research Professor, at Georgetown Law. She holds a JD from Yale Law School, and a BA in Economics from Columbia University. Prior to joining the faculty at Georgetown, she taught at the University of Colorado Law School, was a Fellow at the George Washington University Law School, and spent nearly a decade working in the music industry. Her work has been published in numerous journals, including Vanderbilt Law Review, California Law Review, and NYU Law Review.