Ex Ante Versus Ex Post Justifications for Intellectual Property

Felton suggests two must-read copyright articles. In particular, one of which, written by UC Berkely law professor, Mark Lemley, critiques the new style of copyright-extension argument in a succint and logical fashion.

Felton abstracts:

The usual rationale for copyright is that it operates ex ante (which is lawyerspeak for beforehand): by promising authors a limited monopoly on copying and distribution of any work they might create in the future, we give them an incentive to create. After the work is created, the copyright monopoly leads to inefficiencies, but these are necessary because we have to keep our promise to the author. The goal of copyright is to keep others from free-riding on the author's creative work.

Recently, we have begun hearing ex post arguments for copyright, saying that even for works that have already been created, the copyright monopoly is more efficient than a competitive market would be. Some of the arguments in favor of copyright term extension are of this flavor. Lemley rebuts these arguments very convincingly, arguing that they (a) are theoretically unsound, (b) are contradicted by practical experience, and (c) reflect an odd anti-market, central-planning bias. Based on this description, you might think Lemley's article is long and dense; but it's short and surprisingly readable. (Don't be fooled by the number of pages in the download -- they're mostly endnotes.)

Get the Lemley paper here.