Re: [dvd-discuss] Eldred v. Ashcroft Accepted for ReviewbySCOTUS

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

Scott A Crosby writes:

: On Wed, 20 Feb 2002, John Zulauf wrote:
: 
: >
: > The copyright clause is about promoting progress, not maximizing
: > return.  Having a variable term for works copyrights will only lead to
: 
: Isn't 'progress' usually considered fulfilled when you maximize the
: economic output from a work. When the most money is made on a work? In
: that case, as per Posner and Ladner (I believe), it may be that that is
: true with these obscenely restrictive laws.

I don't see how anyone could conflate ``progress of science''
with ``maximizing the amount of money that can be made on a work.''

Nor do I see how one can sensibly speak of ``maximizing the amount of
money that can be made on a work'' unless one has first determined who, 
if anyone, has the right to make money on the work (and, of course,
the maximum has to be of the amount of money gained minus the amount
of money saved by those who don't have to pay for the work.)  There
is no way that one can calculate such a maximum without first defining
the rights of the various participants in the market and then 
determining what the equilibrium conditions would be for the 
entire market.  And that calculation would not be very meaningful
since the market---which would have to include everyone and everything
in the whole world---never is at an equilibrium, and never will be
until we reach the optimal efficient state where everyone is dead.

For courts to make their decision on the basis of the theology of
Posner and Landes and the other practitioners of pseudo-economic
analysis would violate the establishment clause of the First Amendment.


--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
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