I am looking forward to Frank’s paper on Egalitarian Copyright. I just came across an interesting paper that he’ll certainly need to consider: Daniel Benoliel, Copyright Distributive Injustice (August 2006), at http://law.bepress.com/expresso/eps/1497. The abstract is below the fold:
By design, copyright is a legal field that is not distinctively designed for redistribution. And yet, numerous fairness scholars and other critics of the economics paradigm quite markedly argue that copyright law should be based upon some measure of distribution, not efficiency.
This essay argues that copyright law should not promote distributive justice concerns, subject to narrow exceptions and that other more efficient law such as taxation and welfare laws should do that instead. It does so in accordance to the prevailing welfare economics interpretative approach to copyright jurisprudence, with emphasis on the latest Peer-to-Peer (P2P) file sharing litigation.
It focuses on the leading classes of distributive injustice that have emerged in the present day Internet, referring to poor infringers, poor creators and wealthy copyright industries. At least in these classes of individuals, this essay argues, redistribution through copyright law, arguably, offers no advantage over redistribution through the income tax system and other transfer mechanisms and laws and typically is less efficient in doing so.