UCLA School of Law

The age of digital distribution exacerbates transaction costs in twodistinct ways. First, the dissemination of large quantities of worksrequires permissions from myriad copyright holders. Second, newtechnologies lower the cost of content creation, resulting in millions ofindividual creators, rather than a discrete set of large industry repeatplayers. The potential of class actions to address this rising transactioncost problem has gone largely unexplored. Instead, copyright scholarsapproaching the problem have advocated for either private ordering orlegislative reform. But aggregate litigation fulfills a different function—something much closer to an administrative copyright—administeringmillions of licenses while filling in statutory gaps to address a rapidlyshifting technological landscape.In this sense, copyright class actions also differ from proceduralscholars’ understanding of mass litigation as either a regulatory orjoinder device to address distinct past harms. Instead, this Article offersa novel view of the class action as both an efficient transactionalmechanism—a hybrid public–private licensing scheme—and assubstantive legal reform, updating copyright law for new technologicaluses. Settlements in copyright class actions have been used as blanketlicenses—for both past harms and forward-looking royalties—whereindividual negotiations are impossible. They have also been progenitorsto landmark copyright legislation—and indeed, some settlementsthemselves contain quasi-legislative components that solve long-standingproblems in the copyright industry. This Article argues for a vision ofcopyright class actions as the future and for the promise of licensing andreform by litigation in an age of mass aggregation, far-flung rights, andlegislative gridlock.