Judicial reconciliation of copyright and the Takings Clause is key to properly balancing both doctrines.

Matthew Pangle, “A Modern Reconceptualization of Copyrights as Public Rights,” Vanderbilt Journal of Entertainment and Technology Law, 07-xx-2020, https://cdn.vanderbilt.edu/vu-URL/wp-content/uploads/sites/356/2022/07/20025356/2.Pangle-Article_FINAL_Master.pdf

As with the revisions to patent doctrine, modern copyright reforms set the stage for competing legal policies to conflict. For example, the DMCA was seen as overbroad; by limiting access to digital copyrighted material, the very purpose of copyright—with the public at large as the primary beneficiary of a protected work—was directly contradicted.270 Additionally, the DMCA’s overzealousness in protecting digital copyrighted materials put its provisions directly at odds with the Takings Clause and its rationale.271 By implementing what amounts to a digital lock to prevent reproductions of digital copyrighted material, the DMCA arguably acts as a “regulatory destruction of property’s economic value” and “render[s] large swaths of private property unsellable on secondary markets and, therefore, economically worthless”272 with no real recourse or compensation—thus contradicting the Takings Clause rationale balancing private property rights, government use, and just compensation.273 After all, depleting property of essentially all of its economic value is akin to a taking.274

A second (and more recent) example of copyright doctrine reform is the MMA, enacted in 2018.275 Recognizing another emerging trend, the dominance of digital streaming services, the MMA serves to hold those streaming services accountable for accurate royalty payments while facilitating royalty payments to owners of pre-1972 sound recordings and other music industry professionals, such as sound producers and engineers.276 The MMA received significantly less backlash than the DMCA,277 but has also, allegedly, run afoul of the Takings Clause.278 In an effort to find a middle ground between music artists deserving royalty payments and digital streaming services wanting to offer public access to music at low costs, Congress included a safe harbor provision shielding digital streaming services from copyright infringement liability occurring before January 1, 2018.279 When Eight Mile Style—famous rapper Eminem’s music publishing company—filed suit against Spotify for unpaid royalties, they also claimed that the MMA’s safe harbor provision deprived them of their right to sue for copyright infringement, violating the Takings Clause.280

Pushback or not, Congress’s ability to legislate on behalf of copyright doctrine is paramount to copyright’s effectiveness in an increasingly modernized world. But in attempting to modernize copyright law to keep up with rapidly developing mediums of intellectual property, Congress has put copyrights and constitutional legal principles on a collision course. After failed attempts to pass bipartisan legislation to fix these issues,281 the repair job may be left to the courts. As the Supreme Court did in Oil States with patents,282 a similar reconceptualization of copyrights may be the needed resolution. Moreover, patents and copyrights share many of the same principles, rationales, and foundations.283