Beyond Efficiency: Consequence-Sensitive Theories of Copyright

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Citation: Oren Bracha, Talha Syed (2014) Beyond Efficiency: Consequence-Sensitive Theories of Copyright. Berkeley Technology Law Journal (RSS)
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quote "This fundamental structural similarity between efficiency and its consequence-sensitive alternatives poses a three-part challenge to proponents of democratic and distributive theories of copyright. First, one must explain clearly the value or values that the theory seeks to promote and how they differ from the maximum satisfaction of individuals’ revealed preferences (i.e., efficiency). Second, each theory must identify when and how it leads to results significantly different from those dictated by efficiency regarding specific copyright policy questions. The difference in values alone does not necessarily produce such a divergence. Given the consequence-sensitive nature of the theory, its prized value—say individual self-determination or distributive priority to a specific group—is likely to be subject to an incentive/access tradeoff that closely tracks the efficiency analysis. Third, in a case where a theory does support a result materially different from the efficiency balance, we need a convincing justification for not yielding to subjective individual preferences. To put it bluntly, a consequence-sensitive theory that rejects the efficiency calculus overrides the satisfaction of subjective preferences in favor of some other value. Such an outcome may be acceptable given the theory’s values, but an explicit recognition of its prima facie troubling character, and so me justification for it, are in order."