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.
Thanks, Brett. I look forward to reading this. An initial response: while I certainly appreciate our allegiance as scholars is first to truth, and only secondarily to justice, I find the classic economic emphasis on redistribution via tax (versus any other mechanism) extraordinarily curious given current circumstances. The tax system has become more and more regressive throughout my lifetime (with a brief break in the Clinton years), and there is virtually no one outside of the left wing of the Democratic party vigorously advocating serious redistributive tax reform. To approach this political climate, and calmly declare that egalitarian concerns are to be addressed via the tax system, is tantamount to simply dismissing egalitarian concerns altogether.
One other point: I think there are two types of egalitarianisms: distributive justice egalitarianism (rooted in Rawls and elaborated by Dworkin, Cohen, Sen, Arneson, inter alia) and anti-commodification egalitarianism (developed by Walzer and Radin). From the abstract, it appears to me that Benoliel’s paper is primarily critiquing the former, methodologically individualistic strain of egalitarian thought. But even if we were to accept that crtiique in toto, we would be left with Walzer’s holistic, communitarian concern about preserving “spheres of justice,” modes of distribution undominated by economic, political, or other forms of power. For example, we certainly do not want a world where the success of graduate student dissertations in art history seriously hinges on their capacity to raise funds to buy permissions to reprint reproductions.
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