Since the eighteenth century, two rationales for copyright have contended:
Goldstein, who we have been reading, brings up this distinction in at least two places: his early contrast of copyright "optimists" and "pessimists," and his later discussion of the "two cultures of copyright." In your first essay, you will address this distinction in your choice of any of following three ways. Whichever of the three variants you choose, you should not presume that your audience has any background in copyright law beyond that of a typical college student.
In discussing the two cultures, Goldstein makes a case that the above distinction may actually have less practical impact than is commonly thought. Most questions of copyright policy would be decided the same way, whether grounded in natural rights or in economic incentive. Goldstein may well be right that the distinction has been overemphasized by other authors, yet we should not overlook that the distinction does matter in some circumstances. In your essay, you will examine one circumstance where the distinction matters.
Choose some question of copyright policy where the two copyright rationales would lead to different conclusions. Explain what conclusion each rationale leads to, and why.
In fact, there is a third contender for the copyright rationale: An author is granted (transferable) rights to his work in order that he can interest a publisher in distributing it.
Write an essay of the same sort as variant 1, but instead of contrasting the original two rationales, contrast this third rationale with the second (the incentive to create).
On May 12, 2004, a subcommittee of the U.S. House of Representatives held a hearing on the proposed Digital Media Consumer Rights Acts (DMCRA), H.R. 107. Our course web site gives you a link to the hearing video recording and the text of the witnesses' prepared remarks. (A transcript of the hearing may also become available.) Write an essay explaining how the two different copyright rationales are used by the witnesses and/or by the subcommittee members who question them.
Please rewrite your essay until you are convinced that the answer to each of the following questions is "yes." I urge you to ask a peer to give you feedback as well on whether he or she agrees that all the answers are "yes." When I grade your essay, I will again use these questions, both to give you feedback and to come up with your letter grade. Specifically, I will start with an A and take off one grade "notch" (e.g., from A to A-, or from A- to B+) for each question where the answer is "no". Be warned that some of the questions are so critical that if the answer is "no," then one or more additional answers are necessarily also "no." For example, if the answer to question 1a is "no," you are doomed for 1b through 1e as well.