Academic journal article Michigan Law Review

The Immanent Rationality of Copyright Law

Academic journal article Michigan Law Review

The Immanent Rationality of Copyright Law

Article excerpt

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.

INTRODUCTION

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.1 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.2 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.3 Copyright is seen as just another mechanism of welfare maximization.

In this welfarist understanding of copyright, the wrongfulness of copying is externally determined in its entirety. In copyright law, copying is wrongful only because it interferes with a creator's legally promised market for her expression, thereby potentially reducing the inducement to create future work. Without a legal basis for stopping such harmful copying, creators might choose not to produce original expression, and society as a whole would be worse off for it. Hence the need for copyright law, at least according to the welfarist account.4

In What's Wrong with Copying?, Abraham Drassinower5 forcefully suggests that this dogma is not just superficial or incomplete, but instead that it is utter balderdash. According to Drassinower, the welfarist account of copyright has little to say about the precise structure of copyright law as a unique institution. In other words, even if the core assumptions underlying the account (i.e., about welfare and incentives) are taken to be true, it fails to explain why copyright law is delineated using a very specific set of mechanisms, concepts, and principles-most of which have been in existence ever since the origins of the institution in the early eighteenth century. Thus, in the book, Drassinower sets out to offer a normatively coherent account of copyright law that makes sense of its "fundamental features . . . as a coherent whole" (pp. 7-8).

What's Wrong with Copying? should be lauded for its audaciousness, ambition, and coherence. In challenging the dominant consequentialist account, the book attempts to shift the very framing of the discourse by looking inside the conceptual structure of copyright doctrine, rather than to external considerations. Perhaps most impressively, it succeeds in extending its central premise to the most salient parts of copyright doctrine, thereby realizing a degree of explanatory coherence that most modern theories of copyright routinely lack. In short, What's Wrong with Copying? develops a theory of copyright that takes copyright law seriously.

Perhaps a little too seriously, though. In constructing an account of copyright that takes its doctrinal elements seriously, Drassinower sees a deep rationality within the structure of copyright rules and principles. He believes this rationality is self-contained within copyright doctrine, but also that it is immutable, and necessarily incompatible with other external (and potentially consequentialist) considerations. What's Wrong with Copying? thus presents copyright not just as a rationalist institution, but one which has an entirely and exclusively immanent rationality.6

The book makes a compelling case for looking beyond purely instrumental/consequentialist accounts of copyright to understand the institution and for taking the structure of copyright doctrine as an integral (rather than contingent) part of the institution. …

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