The Uneasy Case for Copyright explained

"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 Justice Stephen Breyer in 1970,^[1] 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.^[2]

In this piece, Breyer made several points:

• That the only defensible justification of copyright is a consequentialist 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 rights 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,^[3] and a rejoinder by Breyer,^[4] 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 article "An Economic Analysis of Copyright Law" (1989), William Landes and Richard Posner systematically analyzed each of Breyer's arguments and concluded that "they do not make a persuasive case for eliminating copyright protection."^[5] In particular they noted that many of his arguments rested on imperfect copying technology, an argument which weakens with technological innovation.

Notes and References

1. Stephen Breyer. The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs. Harvard Law Review. 84. 2. 1970. 281–355 . 10.2307/1339714. 1339714.
2. Book: David. Lange. No law: intellectual property in the image of an absolute First Amendment. Stanford Law Books. 2009. Stanford, Calif.. 978-0-8047-6327-1. 346. Though in form Breyer's essay was a modest work of scholarship, its implications were enormous and have proved long-lasting (and by no means merely because its author ascended to the Supreme Court bench). [...] In our view, Breyer's long-ago study continues to offer the basis for important countervailing arguments against the easy assumptions some economists have made (then and now) in favor of wider protection..
3. Barry W. Tyerman. The Economic Rationale for Copyright Protection for Published Books: A Reply to Professor Breyer. 18. UCLA Law Review . June 1971. 1100–1125.
4. Stephen Breyer. Copyright: A Rejoinder. UCLA Law Review. October 1972. 20. 75–83.
5. William M. . Landes . Richard A. . Posner . An Economic Analysis of Copyright Law . Journal of Legal Studies . 325–363 . 18 . 2 . 1989 . 10.1086/468150 . 153322447 .