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Efficient Distribution

One of the puzzles that I’ve been struggling with over the years is how to approach the notion of efficient distribution in intellectual property law. In Spillovers, Mark Lemley and I develop an economic theory of IP (and many other areas of law really) that is a step in the direction of understanding how distribution is not simply a secondary fairness concern within intellectual property but instead is a primary efficiency concern, and it is more than simply getting more consumption from a nonrival good. Distribution of intellectual works often facilitates productive use and spillovers that need not be internalized to generate “efficient incentives” or “efficient demand signals” via the price system. I’ve written about this here before and in the forthcoming paper, so I’ll not belabor the point. My point is simply that in copyright, fairness and distributive values need not always be seen as inefficient sacrifices that would better be accomplished via the tax system. Some of the “commons components” of copyright law promote distributive values and (arguably) achieve both efficiency and fairness.