September 27, 2012
What's the Over-Under Bet? Originalism, Law & Economics, and Intellectual Property
In the "now for something completely irrelevant" category to the dustup between Scalia and Posner about Reading Law (2012) [something relevant here], I like both Scalia and Posner. They are "characters." It is not that I have any sort of personal relationship with either but as a nearly invisible PTE at the University of Chicago Law Library while attending Chicago's Graduate Library School in 1978-1980, I sorted Scalia's mail with him looking over my shoulder on Saturday mornings. I also routinely had to step over the library's books that were spilling out of Posner's office into the library's walkways to get to the stacks to pull something from the shelves.
I accepted the opinion of the professional librarians that Scalia was an up-and-comer. Mention was not made about his "orignialism" at the time but then we law librarians do have a professional bias toward performing legislative history research.
With plenty of time on my hands working weekends at Chicago's Law Library, I spent a fair amount if it reading Posner's classic The Economic Analysis of Law (multiple copies on reserve). It was the first treatise that made me start thinking about "The Law" because what Posner wrote was so foreign to my then naive understanding of what the law is. It was just by chance that reading and scratching my head over Law & Economics was a productive exercise because Posner et al. has proven to be the only "Law & ..." academic-produced school of thought that has had any real impact in the world of statutory and regulatory developments.
In an issue close to the interests of legal information professionals, drums have been beating about rescuing IP legal analysis from the myopia of the Law & Economics school which reduces intellectual property to economic efficiency arguments. The scholarly arguments come from Law & Culture's public policy analysis which attempts to reframe IP as cultural property. See Reclaiming IP Legal Analysis from Law and Economics. Not good enough without proving that the costs associated with IP are inefficent under a Law & Econ analysis.
Toss in an originalist interpretation of the "Copyright Clause"? Limited duration was viewed in the context a person's working life by our Founding Fathers. Applied to books, maps and charts, the Copyright Act of 1790 was for 14 years, with an option to renew for another 14 years. Clearly, this dovetailed into the human life span context. Too bad, however, that the Founding Fathers did not simply state "until the creator dies."
Toss in a more fundamental public policy argument that the current IP regime cannot be effectively enforced in the 21st century because of the inability to police widespread social behavior. See "Hacking" New and Old Prohibitions: From the 18th Amendment to Today's Copyright Laws. Will that resonant with legislators who remember the arguments found in Thoreau's Resistance to Civil Government (Civil Disobedience) (1849)?
What's the over-and-under bet on that happening when legislators' pockets are being filled by corporations whose lawyers are drafting copyright legislation.
Traditionally Congress has relied on copyright lawyers from the major interested companies, to sit down and write copyright legislation, a recipe not designed to protect the public interest. Congress shows little interest in becoming educated in the details of copyright legislation, enacting what the major interested parties agree on. The line at the top of the page [Article I, Section 8, Clause 8] from the U.S. Constitution is the charge given to Congress to "to promote the Progress of Science and useful Arts, by securing for limited Times..." Recent experience, and economic theory suggests that enlarging and encouraging the public domain and "intellectual and innovative commons" may do more to promote the progress of science and useful arts than locking material away as coporate asset. And "limited times" is surely not 95 years.