In “Eldred and Fair Use,” Posner comments that awarding a monopoly over Mickey Mouse avoids the congestion problem that occurs with open access highways. Is the public domain a commons like an open access highway? No, it is not.

"We show that with common knowledge and a common rate of time preference, the potential loser can always avoid wasteful conflict through a time-consistent series of small concessions. We examine how the failure of each of these assumptions may explain why conflicts arise. We also debate which...