The Immanent Rationality of Copyright Law

Why does copyright treat certain kinds of copying as legally actionable? For nearly a century, American copyright thinking has referenced a core consequentialist dogma to answer this question: incentivizing the production of creative expression at minimal social cost in an effort to further social welfare. This rationale, routinely traced back to the Constitution’s seemingly utilitarian mandate that copyright law should “promote the [p]rogress” of the sciences and useful arts, has come to dominate modern copyright jurisprudence and analysis.2 By classifying specific acts of copying as a wrong, and thereby recognizing a “right to the use of one’s expression,” copyright is believed to provide actors with an independent incentive to produce original expression, one that in turn furthers the overall public interest. Copyright is seen as just another mechanism of welfare maximization. In this welfarist understanding of copyright, the wrongfulness of copying is externally determined in its entirety. In copyright law, copying is wrongful only because it interferes with a creator’s legally promised market for her expression, thereby potentially reducing the inducement to create future work. Without a legal basis for stopping such harmful copying, creators might choose not to produce original expression, and society as a whole would be worse off for it. Hence the need for copyright law, at least according to the welfarist account