Copyright Distributive Injustice

ABSTRACT Copyright law is not distinctively designed for redistribution. And yet, numerous fairness scholars and other critics of the economics paradigm claim that copyright law should be based upon redistribution, rather than efficiency. Redistributive justice goals' intrinsically play a role in the design of the copyright commons, but whether copyright law should itself serve as the means of achieving such goals is truly questionable. This Article argues instead that, subject to narrow exceptions, copyright law doctrine should not promote redistributive justice concerns and that other, more efficient areas of law such as taxation and welfare programs should do so. This argument accords with the prevailing welfare economics approach to copyright jurisprudence and emphasizes the latest Peer-to-Peer (P2P) file sharing litigation. This Article focuses on the leading classes of individuals subject to the distributive injustice that has emerged on the internet: poor infringers, poor creators and wealthy copyright holders. This Article argues that, for at least these three classes of individuals, redistribution through copyright law offers no efficiency advantage over redistribution through the income tax system and other legal transfer mechanisms. TABLE OF CONTENTS A. INTRODUCTION B. CLASSES OF COPYRIGHT DISTRIBUTIVE INJUSTICE 1. ENRICHMENT OF POOR INFRINGERS 2. ENRICHMENT OF POOR CREATORS 3. DIMINISHMENT OF THE WEALTH OF COPYRIGHT INDUSTRIES C. DISTRIBUTIVE INJUSTICES: THE THREE ACCOUNTS 1. LIBERTARIAN ARGUMENTS: BEYOND PARETO SUPERIORITY 2. WELL-BEING THEORY: BEYOND BASIC NEEDS 3. WELFARE ECONOMICS: BEYOND KALDOR-HICKSIAN APTITUDE D. RATIONALES AGAINST COPYRIGHT DISTRIBUTIVE JUSTICE 1. DISTRIBUTION DISCRIMINATES I. LONG-TERM IMPLICATIONS OF PROGRESSIVE DAMAGES II. DISPARITIES BETWEEN LITIGANTS AND NON-LITIGANTS 2. DISTRIBUTION IS OVER-COSTLY 3. DISTRIBUTION IS IMPRECISE 4. DISTRIBUTION IMPOSES INEFFICIENT SOCIAL COSTS E. CONCLUSION A. INTRODUCTION Copyright law, like so many normative theories concerning social arrangements, seems to have bent into the dialectics of egalitarianism. (1) Copyright law is often perceived as a social arrangement, but it is primarily concerned with governing the processes of creation and invention and not simply the proprietary legal entitlements it bestows. However, copyright jurisprudence may have reached a point where it can no longer be said to merely preserve freedom of speech, (2) maintain the public sphere, (3) protect subsequent generations of authors, (4) promote liberty and freedom. (5) Instead, it now is said to support direct distributive justice ends through what is considered a fair distribution of proprietary legal entitlements. Within copyright jurisprudence, distributive justice functions as a normative claim about the lair allocation of proprietary entitlements among original copyright owners and other individuals in society. (6) An examination of the academic literature and copyright litigation reveals that distributive justice arguments are appearing with greater frequency and receiving greater deference in copyright jurisprudence. When faced with this expansion of the importance of distributive justice in copyright doctrine, one is reminded of Will Kymlicka's fatalistic chronicle of how, under the burden of time, this becomes the fate of all too many contemporary political theories. (7) This Article argues against the prospect of increasing deference to distributive justice in copyright law. Distributive justice arguments appear most prominently in litigation involving copyright holders, such as motion picture studios, recording companies, songwriters, music publishers and even venture capitalists. (8) These copyright holders are accused of trying to maximize their own profits, or even efficiency at large, at the expense of disadvantaged users, creators and amateurs. …