The Uneasy Case for Copyright
Encyclopedia
"The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs" was an article in the Harvard Law Review
by future United States Supreme Court
Justice Stephen Breyer
in 1970, while he was still a legal academic. The article was a challenge to copyright expansionism, which was just entering its modern phase, and was still largely unquestioned in the United States. It became one of the most widely cited skeptical examinations of copyright.
In this piece, Breyer made several points:
There was a formal reply by law student Barry W. Tyerman in the UCLA Law Review
, and a rejoinder by Breyer, but the article appears to have had little impact on copyright policy in the lead up to the Copyright Act of 1976
.
Seventeen years later, in their mathematical law and economics
article "An Economic Analysis of Copyright Law" (1989), William Landes
and Richard Posner
systematically analyzed each of Breyer's arguments and concluded that "they do not make a persuasive case for eliminating copyright protection." In particular they noted that many of his arguments rested on imperfect copying technology, an argument which weakens with technological innovation.
Harvard Law Review
The Harvard Law Review is a journal of legal scholarship published by an independent student group at Harvard Law School.-Overview:According to the 2008 Journal Citation Reports, the Review is the most cited law review and has the second-highest impact factor in the category "law" after the...
by future United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
Justice Stephen Breyer
Stephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
in 1970, while he was still a legal academic. The article was a challenge to copyright expansionism, which was just entering its modern phase, and was still largely unquestioned in the United States. It became one of the most widely cited skeptical examinations of copyright.
In this piece, Breyer made several points:
- That the only defensible justification of copyright is a consequentialistConsequentialismConsequentialism is the class of normative ethical theories holding that the consequences of one's conduct are the ultimate basis for any judgment about the rightness of that conduct...
economic balance between maximizing the distribution of works and encouraging their production. - That there is significant historical, logical, and anecdotal evidence which shows that exclusive rightExclusive rightIn Anglo-Saxon law, an exclusive right is a de facto, non-tangible prerogative existing in law to perform an action or acquire a benefit and to permit or deny others the right to perform the same action or to acquire the same benefit. A "prerogative" is in effect an exclusive right...
s will provide only limited increases in the volume of literary production, particularly within certain sections of the book market. - That there was limited justification for contemporary expansions in the scope and duration of copyright.
There was a formal reply by law student Barry W. Tyerman in the UCLA Law Review
UCLA Law Review
The UCLA Law Review is a scholarly journal founded in 1953 and published by the students of the UCLA School of Law. Six issues are released every year....
, and a rejoinder by Breyer, but the article appears to have had little impact on copyright policy in the lead up to the Copyright Act of 1976
Copyright Act of 1976
The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions...
.
Seventeen years later, in their mathematical law and economics
Law and economics
The economic analysis of law is an analysis of law applying methods of economics. Economic concepts are used to explain the effects of laws, to assess which legal rules are economically efficient, and to predict which legal rules will be promulgated.-Relationship to other disciplines and...
article "An Economic Analysis of Copyright Law" (1989), William Landes
William Landes
William M. Landes is an economist who has written widely about the economic analysis of law. He is a fellow of the American Academy of Arts and Sciences, which cited him for his pioneering work in the field...
and Richard Posner
Richard Posner
Richard Allen Posner is an American jurist, legal theorist, and economist who is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School...
systematically analyzed each of Breyer's arguments and concluded that "they do not make a persuasive case for eliminating copyright protection." In particular they noted that many of his arguments rested on imperfect copying technology, an argument which weakens with technological innovation.