Re: [dvd-discuss] [openlaw] Government takes more extremelineinsecond"Eldred" case

["Peter D. Junger" <junger(at)samsara.law.cwru.edu>]

: The economic approach to copyright is interesting.  It seems to provide
: some guidance to what is fair use and how copyright law should evolve.
: Is there an economic approach to resolving the DVD case?  To
: understand the DMCA?  I'm sure that economic arguments could be made
: for any side.

The last sentence is certainly correct.  The trouble is that any
economic argument is going to have to be based on assumptions
about the world that are amenable to the sort of analysis
that economists do.  That means that the assumptions have
to be very unrealistic.  One thing that economic arguments
can't deal with is figuring out the value of things that 
are priceless.  Nor can they say anything about the comparative
advantages of two different legal systems that have different
distributions, to say nothing of different concepts, of rights.
Inevitably economic analyses favor those who are already rich
because the analyses ultimately tend to be little more than
applications of the amoral principle of ``one dollar, one vote.''
And the analyses cannot deal with ``exogenous'' changes---changes
that are not covered by the original assumptions---and that includes
changes in technology.

Having said that, the best exonomic analysis that I know of dealing
with copyright---best because of the modesty of the assumptions
and the honest uncertainty of the conclusions---is an article
written by Justice Breyer when he was a professor at Harvard 
Law School:

Breyer, Stephen.  "The Uneasy Case for Copyright: A Study of
Copyright in Books, Photocopies, and Computer Programs."
Harvard Law Review 84 (December 1970): 281-351.

One of the striking things about that article is the clarity
with which Breyer foresaw the issues that would only later
become clear with respect to copyrighting computer programs.

This article has never, so far as I know, been made available in
digital form.  I think that it would be a great service if
someone were to get permission (from whom?  Harvard L. Rev.?
or Justice Breyer himself? (see Tasini)) to scan it or keyboard it
and then post it on the Web.  Or would it be fair use to 
post it without permission?  It is, after all, the answer to
lots of economic claims that are passed off as legal arguments
by the MPAA and the other ``content providers.'' 

Two other articles that are related to _The Uneasy Case for Copyright_
are:

Tyerman, Barry W.  "The Economic Rationale for Copyright Protection
for Published Books: A Reply to Professor Breyer."  UCLA Law
Review 18 (June 1971): 1100-1125.

Breyer, Stephen.  "Copyright: A Rejoinder."  UCLA Law Review
20 (October 1972): 75-83.

I might add one thing about economic analyses.  It is dogma that
whenever the actual price of goods stays for long periods of
time above the marginal price of producing those goods something 
must have gone wrong with the market.

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
        NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists