Friday, September 26, 2008
This essay reviews Copyright's Paradox by Neil Weinstock Netanel. It argues both that the book is the best exposition of the free speech critique of copyright and that the critique suffers two flaws. First it must cherry-pick among strands of free speech theory, emphasizing some and ignoring others. It thereby sacrifices a claim to be grounded in any conception of freedom of expression as such.
Second, in Netanel's version the critique holds that judges and legislators may intervene selectively in the expressive environment to make that environment more robust. Such intervention includes favoring some types of speech over others. To the extent this claim is true it undermines the premise that government actors are incapable of determining the socially optimal level of various kinds of expression. Without that premise, however, the free speech principle itself is undercut, and the free speech critique of copyright with it. I propose that this is the most interesting paradox Netanel's book identifies.
Download the paper from SSRN here.