Yafit Lev-Aretz, ‘Copyright Lawmaking and Public Choice: From Legislative Battles to Private Ordering’

Introduction:
… The ability to organize a large crowd with diffuse interests into effective political action — as seen in the SOPA/PIPA protest — challenges a broad array of copyright scholars using public choice theory to demonstrate the disproportionate influence copyright holders, especially the entertainment industries, have had on copyright lawmaking. Based on the assumption that decisions in public entities are made by individuals attempting to advance their rational interests, public choice theory looks at administrative decisions as the product of pressure from interest groups. According to public choice models, the lawmaking process involves organized interest groups who compete to implement their agenda, while the outcome is dictated by relative group strength — the group with the greatest political capital is likely to wield superior influence on the process. Consequentially, the market for legislation systematically produces too few laws that are conducive to the overall benefit of society (i.e., “public goods”), while systematically delivering too many laws that allocate resources to an interested group (i.e., “rent-seeking” laws) …

Yafit Lev-Aretz, ‘Copyright Lawmaking and Public Choice: From Legislative Battles to Private Ordering’. Harvard Journal of Law and Technology, Volume 27, Number 1, Fall 2013.

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