June 2005

The Creators Own Ideas

Continued from page 2

By Richard A. Epstein

Social Reasoning
That same overconfidence about software licensing pervades Lessig's treatment of copyright. No matter one's political beliefs, it is critical to remember the strong economic imperatives that drive modern societies to legislate some form of copyright protection. Just as we protect private rights in land for the benefit of the community, not solely for a property's owner, so too we have a social reason to protect writings and other intellectual creations.

As John Locke would have it, a just society recognizes the natural rights of its citizens, including the right to protection of their productive labor. But copyright has an additional justification: it fosters huge positive contributions to culture, in the form of novels, movies, manuals, music, and other works. Some creators are motivated solely by the desire to create and would be happy to distribute their works under simple terms such as a Creative Commons license requiring attribution only. But for most authors, compensation matters, and we increase their production by limiting the rights of others to copy their work. Of course, authors who claim copyright protection today necessarily build on the efforts of prior writers. But Lessig's rhapsodic praise of free culture ignores the necessary trade-offs between producers and users that any mature system of copyright must take into account.