University of San Diego School of Law
Missouri Law Review, Vol. 69, No. 1, Winter 2004
This article explores the foundations of copyright law. It contends that debates over copyright policy bog down because scholars use instrumental arguments for which they have little or no data, while ignoring the first principles that affect how one approaches such data as do exist and copyright policy more generally. Consequentialist rhetoric obscures discussion of the ethical considerations that best explain the positions taken in the face of indeterminate consequentialist analysis. The result is a dreary debate over who should bear the burden of proving the unprovable facts.
If the debate is going to improve, participants should spend less time swapping unfalsifiable consequentialist narratives and more time discussing the normative premises that explain where those narratives come from. This article tries to take a step in that direction. It discusses four normative approaches that explain some of the major positions in current debates. I suggest that each position represents a starting point from which analysts retreat until they can construct a plausible consequentialist narrative.
The first position is a Lockean view, which I call property libertarianism, and which is my own. The second is a free-speech oriented view, which I call speech libertarianism. This approach focuses on the right to use copyrighted works and is closely related to a consequentialist (but not utilitarian) theory that I call expression maximization. The third is an autonomy-based theory, and the fourth is utilitarianism itself. I explore the strengths and weaknesses of each approach.
I conclude with recommendations for improving current debates. These include the need for a cogent defense of the ethics of free riding, the need for more data and more temperate rhetoric, the need not to constitutionalize the issue, and the need to acknowledge that we are all interested parties with a stake in the results of these debates. It is no accident that commercial firms with large investments on the line favor strong rights that offend many academics who, on average, produce content they give away and consume relatively high-variance content. Self-interest does not discredit any position, but acknowledging its importance might help each side appreciate better the pressures shaping positions on the other side.
Number of Pages in PDF File: 117
Date posted: May 5, 2004