Shyamkrishna Balganesh, ‘The Immanent Rationality of Copyright Law’

What’s Wrong with Copying? By Abraham Drassinower. Cambridge and London: Harvard University Press. 2015. Pp. xi, 272. $39.95. Why does copyright treat certain kinds of copying as legally actionable? For nearly a century, American copyright thinking has referenced a core consequentialist dogma to answer this question: incentivizing the production of creative expression at minimal social cost in an effort to further social welfare. This rationale, routinely traced back to the Constitution’s seemingly utilitarian mandate that copyright law should ‘promote the [p]rogress’ of the sciences and useful arts, has come to dominate modern copyright jurisprudence and analysis. By classifying specific acts of copying as a wrong, and thereby recognizing a ‘right to the use of one’s expression’, copyright is believed to provide actors with an independent incentive to produce original expression, one that in turn furthers the overall public interest. Copyright is seen as just another mechanism of welfare maximization …

Shyamkrishna Balganesh, ‘The Immanent Rationality of Copyright Law’ 115 Michigan Law Review 1047 (2017).

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