Private Law Theory

ABSTRACT
The circuit split on the applicability of de minimis exceptions to digital sampling has stirred controversy for the last decade. An adequate resolution to this split ought to treat copyright interpretation as an institutional choice, incorporating economic concerns into statutory construction. This Comment analyzes the copyright system as an institutional allocation of rights under positive transaction costs. The choice between the Sixth Circuit’s interpretation in Bridgeport and the Ninth Circuit’s interpretation in Ciccone reflects fundamental alternatives between resource allocations under costly bargaining. Therefore, the institution of the de minimis doctrine within digital samples of copyrighted work should account for the same institutional difficulties that standard property and tort law have long considered. Three major economic problems arise: transaction costs, anticommons problems, and rent-seeking. High transaction costs prohibit bargaining over licensing, so the right to use the digital work must be assigned to the most productive party. Given the chilling effect on creative innovation that the Sixth Circuit’s interpretation would have, the applicability of de minimis exceptions is preferrable. The de minimis doctrine also mitigates the anticommons problems by allowing broader access to complementary goods, mirroring the fair use doctrine’s economic role. Finally, the de minimis doctrine limits rent-seeking behavior by copyright holders and prohibits such holders from obtaining rents on non-expressive aspects of a work. Ultimately, US copyright law should be read to maximize the creative productivity of de minimis exceptions to prevent the high transaction costs of licensing from limiting creative interplay between artists’ works.

Gonzalez, Nicolas C, Maximizing De Minimis (June 30, 2026).