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Jane C. Ginsburg

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Jane C. Ginsburg

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Rebecca Giblin and Jane C. Ginsburg

This chapter addresses the implications of business models that fulfill demand for individual access to works in a manner which avoids liability for infringing the public performance and reproduction rights. The authors argue that the opportunistic engineering choices that obscure some courts’ perceptions of the impact on the on-demand access market risk removing evolving markets from the scope of copyright owners’ exclusive rights. Businesses that free-ride on copyrighted works also obtain an unfair competitive advantage over copyright licensees. The authors argue that liability should not turn on ancillary questions such as who did the act, whether unique copies were made, or the size of a transmission’s potential audience, because these bases for (or against) liability can be vulnerable to manipulation and exploitation. Instead asking the ‘right’ questions should lead to principled conclusions about the legal effects (if any) that should flow from distinctions between technological modes of exploitation.