Steven Horowitz: Copyright's Asymmetric Uncertainty

If you are trying to catch the attention of student law review editors, write an abstract like Steven Horowitz did for Copyright's Asymmetric Uncertainty. Horowitz, a Sidley Austin associate coming off Posner/Kennedy clerkships, uses one paragraph to convey a clear and simple idea that still seems novel and nonobvious. Let's see how he does this:

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.

Starting an abstract with "everyone else thinks X" is pretty common, and this "conventional wisdom" will probably sound right to anyone who has taken an intro IP class. I heard an interesting empirical paper presented by Matthew Sag at IPSC challenging whether the fair use test is really so indeterminate, but I think this is still the conventional wisdom.

The conclusion is right but for the wrong reasons.

Really? I'm intrigued, and want to read more.

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 risk-seeking, while those facing a potential gain are risk-averse.

Yes, this sounds familiar from the little I know about behavioral economics, and I start to see where you're going...

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.

Clever! Here is a clear statement of the novel and nonobvious insight. But Horowitz jumped from saying that copyright is uncertain (the first sentence of the abstract) to saying that this uncertainty is asymmetric (the first sentence of this excerpt)—is this right? Isn't an uncertainty for a copyright user also an uncertainty for the holder? If I were still an articles editor, I would flag this claim as something I'd need to see a strong defense of—and in Part I, I wold find that "salient" is the key word here, which makes the claim seem plausible. But back to the abstract, let's see how Horowitz then introduces a second insight:

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.

As Horowitz further explains in the Introduction, his article is based on three uncertainties, which also serve as his structure: Part I examines the asymmetric uncertainty of the copyright system (where uncertainty is greater for users than copyright holders), Part II shows that copyright's asymmetry is efficient in light of the asymmetric sensitivity to risk, and Part III argues that copyright's asymmetry conflicts with the asymmetric value of notice under the Rule of Law. Even if some readers might disagree with this normative foundations of his argument, at least these bases are clear (so, e.g., a reader who cares about efficiency but not rule-of-law ideals would conclude that copyright's asymmetric uncertainty is good).

By the end of the abstract, I'm interested enough that I would be pretty sure I would send this article to other committee members for further consideration, as long as the rest of the article could follow through on the abstract's claims. (I would often have a good idea of what I would do with an article within the first 5-10 minutes of opening it—first impressions matter.) And Horowitz must have made a similarly good impression on the Chicago Law Review editors, where this article was accepted.