3 comments

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  eee_eff

  1 year ago

  Two sharply contrasting views dominate the debate over copyright policy. On the one hand—the left one, we might say—copyrights represent mere policy tools, no better in principle than any other legal mechanism and, indeed, more modern, rationally planned, and democratically chosen that anything the common law can offer. On the other hand—the right hand, we might say—copyrights represent property rights no less than real estate or moveable goods do. On that view, copyrights deserve strict enforcement and our solemn respect.
  
  I think you've somewhat mis-stated the so-called left view. It's not a "mere policy tool, no better in principle than any other legal mechanism" because it is part of the Constitution--more than a historical accident--and therefore is something of a special case. It seems it was put there deliberately, because those who placed realized that otherwise copyrights would fall afowl of other freedoms, Freedom of Speech in particular. Copyright is a special case exception to freedom of speech.
  
  Because of this, the framers had even written the rationale behind this special exception to freedom into the Constitution:
  
  "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"
  
  Thus copyright is a limitation on freedom, allowed only for a certain purpose. I say allowed because the Constitution does not require that Congress enact such protections as Copyright and Patents, it only allows them to.
  
  This does rather destroy any reading of the so-called 'Right' hand, because Congress could, at its own chosing, decide to eliminate such protections. This appears to be the course you're proposing. So I really don't see very much difference between your position and that found in the Constitution.
  
  As far as your comments about spontaneous order, as important as such observations are, it's not clear how they fit into your overall theory.
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  Anonymous

  1 year ago

  Enigma: I don't disagree with your additional caveat, but I don't see how that renders my description of the leftist view inapt. Copyright remains a mere policy tool even if it is one authorized by the Constitution. That distinguishes it from other policy tools, such as No Child Left Behind or wetlands regulations, only in that it has a better claim to constitutionality. But a leftist would be the last to make much hay out of that.
  
  To restate the importance of understanding unplanned orders: If you don't see the possibility of alternatives to central planning, you won't very well appreciate their utility. People who denigrate the common law, I find, typically don't understand how it can promote the common good. Why? Because they suffer from a sort of conceptual blindness, thinking that only planners can organize society.
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  eee_eff

  1 year ago

  I entirely agree with the impostance of spontaneous unplanned order, but I don't think those processes are clearly worked into your theory, although even your short explanation above goes some way towards doing this.
  
  Of course von Hayek and the work of von Nueman tie in here, but also urban planning theory, too. See Jane Jacobs The Death and Life of Great American Cities.
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