The volunteer cases are interesting because they seem to challenge my argument that the common law is concerned with internalizing benefits — the challenge arises because the common law rule tells the house painter she is not entitled to sue for the benefits she has conferred. This seems to contrast with the treatment copyright gives authors.  An author is a kind of volunteer, yet authors are empowered to sue copiers regardless of whether or not the copiers have agreed to a contract.

  I argue that the contrast between the rules doesn’t show that the common law rejects the internalization of benefits.  Rather the same consideration operates in both rules:   a common-law preference for achieving internalization through contracting, in markets, as opposed to requiring internalization after the fact by judicial fiat.

Courts generally adopt rules that encourage markets to form.  For ordinary services, markets will be discouraged if service-providers can routinely get paid without contracts, while markets will be encouraged by an opposite rule that routinely makes contracts essential.  So the latter is the baseline rule adopted: Volunteers need contracts if they wish payment. That rule works well for services because as a practical matter, service-providers have natural leverage to obtain contractual agreements.  Most customers can’t get their houses painted without promising payment.  Authors don’t have this leverage.  It’s physically quite easy for a publisher or a customer to make copies of most authorial works without consulting anyone.

Copyright law provides a substitute for physical leverage; without it, potential publishers or customers might withhold payment from potential authors in the hope of free-riding on an authorial work which (they hope) won’t need their contribution in order to be created and circulated.  A fear of such scenarios leads to a concern that, in a world without copyright, strategic behavior by potential beneficiaries might make it quite difficult for authors to find sufficient promises of payment, and that as a result the public might have fewer works created than it would in fact prefer.  The copyright rule requiring payment for copying allows the potential beneficiaries and potential benefactors to coordinate (through contract) what is wanted and what can be supplied, avoiding the frustration of demand unfulfilled because unexpressed.

The no-payment rule applied to volunteers who provide services is interesting not because it’s a perfect analogy to copyright. To the contrary, it’s interesting as ‘the exception that tests the rule.’ Comparing authors with ordinary volunteers reveals — I think unsurprisingly — -that the operative common-law rule isn’t “internalize by whatever means possible,” but rather, “internalize by market if you can, and turn to lawsuits only to the extent that unassisted markets aren’t likely to do the job.”  For non-excludable goods like works of authorship, internalization via contracts and markets might not occur unless the law gives authors (a particular subset of volunteer benefactors) a right to sue for benefits conferred.

Originality:  My concepts of authorship or originality aren’t mystical; I don’t think you need autonomy justifications for copyright law that go beyond the ordinary.  Rather, original authorship marks out an area where imposing liability for certain non-consensual uses of ‘privately-produced public goods’ turned out, at least arguably, to be socially tolerable and limit-able – an area where prohibiting a particular form of free-riding seemed (at least sometimes) to be capable of resisting a slide into a general rule against free-riding.

A general rule against free-riding would, of course, dangerously impair community.  Originality functions as a concept useful to mark the territory where a historical experiment in ‘internalizing positive externalities’ by non-market methods arguably had some success.