The general object of this note is to examine the use of compulsory licenses' in copyright law. More specifically, it examines the increasing likelihood, although of questionable constitutionality, of judicially-imposed compulsory licensing as a remedy in copyright infringement cases. This Note asserts that compulsory licenses are a political compromise divorced from the policies behind the
Copyright Clause of the United States Constitution. Congress imposed compulsory licensing in response to technological changes in information transmission, 2 thereby unwittingly extending copyright protection beyond the scope of the Copyright Clause. Compulsory licenses, while politically pragmatic, grant a copyright owner
plenary rights instead of the bundle of
exclusive rights ordinarily granted by copyright law. Additionally, this Note contends that because lower courts misunderstand the nature and scope of copyright law, they, misled by that confusion, are threatening to turn to compulsory licensing to settle conflicts between the litigants before them. 3 Such an
ultra vires remedy should not be imposed because copyright law is purely a
statutory construct, and only Congress is empowered by the Constitution to create the remedies for copyright infringement.
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