05 August 2003

Apparently, I'm not the only one who finds the epidemiological evidence of anticopyright bias from "cyberprofs" at least disturbing. See my previous discussion with Professor Solum, in which I argued that "The real difficulty with economic arguments against particular aspects of IP, such as the length of term accorded a copyright, is that they are arguments in a constitutional and logical vacuum."

   Regardless of our differences on economic theory—neither one of us is going to convince the other which theory of economics is "right" in this context!—economics does not and cannot fill the constitutional and logical vacuum. The constitutional vacuum is Article I, § 8, cl. 8, which explicitly states a noneconomic purpose as justification for copyright (and patent); the logical vacuum is the question of "if not property, what alternative means consistent with the constitution?" (Although the latter seems as if it is just an extension of the constitutional vacuum issue, it goes to the method rather than the substance of the argument.)