"The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs" was an article in the '' Harvard Law Review'' by future

United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...

Justice Stephen Breyer in 1970, while he was still a legal academic. The article was a challenge to copyright expansionism, which was just entering its modern phase, and was still largely unquestioned in the United States. It became one of the most widely cited skeptical examinations of copyright. In this piece, Breyer made several points: * That the only defensible justification of copyright is a

consequentialist In ethical philosophy, consequentialism is a class of normative, teleological ethical theories that holds that the consequences of one's conduct are the ultimate basis for judgment about the rightness or wrongness of that conduct. Thus, from a ...

economic balance between maximizing the distribution of works and encouraging their production. * That there is significant historical, logical, and anecdotal evidence which shows that

exclusive right In Anglo-Saxon law, an exclusive right, or exclusivity, is a de facto, non-tangible prerogative existing in law (that is, the power or, in a wider sense, right) to perform an action or acquire a benefit and to permit or deny others the right t ...

s will provide only limited increases in the volume of literary production, particularly within certain sections of the book market. * That there was limited justification for contemporary expansions in the scope and duration of copyright. There was a formal reply by law student Barry W. Tyerman in the ''

UCLA Law Review The ''UCLA Law Review'' is a bimonthly law review established in 1953 and published by students of the UCLA School of Law, where it also sponsors an annual symposium. Membership is decided based on performance on a write-on competition. The edi ...

'', and a rejoinder by Breyer, but the article appears to have had little impact on copyright policy in the lead up to the Copyright Act of 1976. Seventeen years later, in their mathematical

law and economics Law and economics, or economic analysis of law, is the application of microeconomic theory to the analysis of law, which emerged primarily from scholars of the Chicago school of economics. Economic concepts are used to explain the effects of law ...

Richard Posner Richard Allen Posner (; born January 11, 1939) is an American jurist and legal scholar who served as a federal appellate judge on the U.S. Court of Appeals for the Seventh Circuit from 1981 to 2017. A senior lecturer at the University of Chic ...

systematically analyzed each of Breyer's arguments and concluded that "they do not make a persuasive case for eliminating copyright protection." In particular they noted that many of his arguments rested on imperfect copying technology, an argument which weakens with technological innovation.

References

{{DEFAULTSORT:Uneasy Case for Copyright, The Copyright law literature Works originally published in the Harvard Law Review 1970 documents 1970 in law Works about the information economy Economics of intellectual property