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Eroding Property Rights: The Pseudo-economics of Copyright in Justice Breyer's Eldred Dissent
Friday, April 11, 2003 by former FCC Commissioner Harold Furchtgott-Roth, Furchtgott-Roth Economic Enterprises In a recent opinion, Eldred v. Ashcroft (1), or simply Eldred, Justice Stephen Breyer dissented from the majority opinion upholding the constitutionality of an extension of the terms for copyrighted works under the 1998 Sonny Bono Copyright Term Extension Act of 1998. The majority opinion by Justice Ginsburg is based almost exclusively on constitutional and legal arguments. In his dissent, in addition to legal and constitutional principles, Justice Breyer articulates several economic arguments. Among these are the following five:
Justice Breyer's dissent in Eldred hints at doubts about the value of intellectual property protection generally and copyrights in particular. He views "science" and economic well-being as enhanced by intellectual property in the public rather than the private domain, and indeed that privately held intellectual property may well be the antithesis of the "Progress of Science"(2). Skepticism about the value of property generally and intellectual property in particular is not an uncommon theme in intellectual and commercial thought in America (3). It is better, or so the argument goes, to transfer the property of a few individuals to the benefit of the masses rather than enrich an unworthy class that has merely inherited unearned wealth.(4) It is perhaps intemperate for an economist to write about the failings of a legal opinion written by one of the great jurists of our time. It is not, however, the legal opinion that is necessarily wanting, merely the economic arguments it employs. Intellectual property rights, and copyrights in particular, may justifiably be limited for reasons; economics is not likely one of them. Justice Breyer's opinions usually champion property rights rather than militate against them. The comments below are offered not because Eldred is typical of Justice Breyer's opinions, but precisely because it is atypical. Let us review each of the five dubious findings in turn. 1. Intellectual property is substantially different from other forms of property and consequently should be treated differently. It is easy to assume that the unfamiliar (intellectual property) is inherently different from the familiar (ordinary property), rather than just more of the same. To understand why intellectual property is little different, let us review the economics of property rights; externalities, public goods, other exceptions, and compensation; the percolation of intellectual thought to the Supreme Court; and why intellectual and other property are much the same. The Economics of Property Rights To many American economists, economic thought has progressed to a point where certain principles regarding the usefulness of property rights are beyond legitimate doubt. Among these principles are the following: clearer--rather than vaguer--property rights enhance the efficiency of markets; more rather than fewer property rights enhance the efficiency of markets; efficient markets with clear property rights will lead to greater innovation and greater aggregate economic welfare than other market conditions; the general principles of economics apply to all matters of scarcity; that one of the most useful purposes of property rights is to ensure meaningful exchanges that benefit all participants rather than to restrict exchanges or to enshrine a permanent relationship between an individual and an object; and ultimately, the most efficient role for government is rarely more than to enforce property rights and adjudicate disputes. The precise contours of property rights can be subtle and defined in countless ways, but they should be enforceable however reasonably defined. These principles, or so many economists believe, apply to practically all forms of property: real estate, food, clothing, and even intellectual property (5). Antiseptic and dull to many readers, these economic property principles are met with some distrust in parts of American academic thought. Surely, the skeptics argue, even if these property rights principles are correct under some circumstances, the simple findings of rational economics cannot universally hold. And, indeed, few economists would doubt that there are exceptions to the general principles. Most economists would agree that there are some exceptions and that some assets should efficiently be held collectively or by the public sector. Indeed, in every country in the world, the public sector holds a great many assets, often the vast majority of assets in the economy. Thus, in the United States, the government owns much of the land, an extensive road network, a great amount of specialized assets such as those for national defense. Other assets are held neither exclusively by private parties nor by the government, such as intellectual property in the public domain. Most government assets were purchased or acquired with some form of compensation; intellectual property, by contrast, simply transfers from the private to the public sector after a statutory period of protection. The government protects all forms of property; only intellectual property automatically is appropriated by the government. The usual explanation is that the authors of intellectual property are compensated during the limited time period of intellectual property protection. Whether individual creators are ultimately reasonably compensated or not is a judgment beyond the reach of either individual or government; what is uniquely different about the treatment of intellectual property is that the creator of intellectual property is time-limited in receiving compensation; the creators of other forms of property, such as a building or a financial instrument, are not time limited at all in receiving compensation. Externalities, Public Goods, Other Exceptions, and Compensation It turns out that there are exceptions to the general principles of property rights and economics, but rarely do these exceptions lead to the claim of an efficient transfer of property from the private to the public domain, and almost never are these transfers uncompensated, and never do these exceptions lead to an efficient solution of a time-limited property right. Moreover, among the exceptions to the ordinary principles of economics, intellectual property and copyrights are rather conspicuous by their absence. Consider the case of what economists call an “externality,” the effects that one individual’s exercise of property may have on another’s property, either in production or consumption. The concept of ownership is often predicated on notions of non-interference with the property or rights of others. An individual may own and use a radio speaker, but the noise from the speaker may not lawfully interfere with a neighbor’s property. In the presence of externalities, property rights may reasonably be limited or circumscribed. Externalities, however, operate no better in the public than in the private sector, and rarely is the efficient solution with externalities to transfer them to the public sector. Nor is it the case that the presence of externalities is an economic rationale to steal property from one private party for the benefit of a different private party. While intellectual property may occasionally have some aspects of externalities, such aspects are rarely the salient characteristics of the intellectual property. The concepts of markets and exchange are predicated on some notions of ownership and authority to exchange and authority to exclude others for owning and exchanging. Economists have a term for specialized goods that are neither exhaustible, excludable, nor congestible-public goods. Some of the exceptions to the usual principles of economics are public goods. The efficient treatment of public goods is not necessarily to transfer them to the public sector or to make them freely available to the public, although in some cases, such as land of unusual beauty, that is the outcome. Even in these rare instances, property owners are compensated for the transfer. The great search for meaningful exceptions to the general principles of economics rarely finds much success in the realms in which economic commerce has been well-established for millennia: land, food, labor, and great many other familiar realms of commerce. It is difficult if not impossible to argue that the old laws of property and markets which have worked well for centuries are consistently wrong. More exceptions are found in new areas of commerce where law has not yet fully defined all of the contours of property rights: for example, space law, spectrum law, and modern medicine law. In few areas, however, have anti-property economic skeptics found more solace than intellectual property and popular media. The intersection of the two, copyright laws, are perhaps the center of fermentation for the seeds of anti-property economics. Are intellectual property, and copyrights in particular, public goods? In most cases, no. Copyrights are congestible, exhaustible, and excludable. Are copyrights different from other forms of property in that it may be efficient to steal them, to make their property rights vague, or to transfer them to the public domain? The simple economic answer to all of these questions is “No.” Nonetheless, some economists take without question that an entirely different economics must apply to intellectual property. Without blush of embarrassment, many reasonable people will assert that the economics of intellectual property is inherently different from other that of most other forms of property; that fewer rather than more property rights for intellectual property will lead to more efficient markets; that more ambiguous rather than clearer property rights are superior; that the purpose of intellectual property laws is to enshrine a relationship between individual and object and most certainly not to foster beneficial exchanges; that greater innovation and economic well-being will spring from lesser, not greater, property rights; that the best purpose of government with respect to intellectual property is to bring property from the private into the public domain. These intoxicating principles, which would be viewed with scorn if applied to practically any form of property, are hailed as intellectually defensible-even intellectually superior-when applied to intellectual property and copyrighted works in particular. The principles are not the mere opiates of obscure academic journals, the rants of a property-less class seeking to justify the theft of someone else’s property; no, these anarchic principles have percolated up to the opinions of the Supreme Court of the United States. An unusual form of property Federal law does not currently grant to copyright holders exclusive property rights. The public has far greater legal access to copyrighted works than to just about any other form of private property. “Fair use” principles, for example, permit the unsanctioned and non-exclusive use of copyrighted works. Indeed, the entire reason for copyright law is not to create absolute exclusivity, but precisely to allow authors to control distribution of expressions, not to prevent distribution. Justice Breyer in his dissent paints a stark contrast between the interests of public and the interests of the author, as if the two are antagonistic, or as if the latter sadistically creates works merely to deny the former access to them (6). Yet practically all artists create works, and seek copyright protection, precisely to make them available to the public for the public’s benefit. An author that creates a work and locks it in a safe away from public view does not need or want copyright law. Justice Breyer sees the copyright law differently. According to Justice Breyer, the public is denied access to copyrighted works during copyright terms. Quoting Stewart v. Abend, copyright terms are limited so that the public “will not be permanently deprived of the fruits of the artist’s labors” (7). Yet the public has substantial access, both through contract and through fair use, to copyrighted works. The similarity of intellectual to other forms of property Why should the same economic principles that apply to land or labor not apply to intellectual property? No obvious answer emerges. If a farmer owns a 100-acre farm, similar to any number of other farms, economists would say the farmer owns a 100-acre farm, but certainly not a monopoly on farm land. Now if the same farmer happens to own the rights to distribute a music recording similar to countless other music recordings, the farmer now owns a “monopoly.” Why the difference? Land is labeled land, and intellectual is labeled a monopoly, even if the farmer cannot receive a nickel for the rights to distribute the music recording. Similarly, most economists would agree that the optimal period of time to deed the title for the land of a farm is perpetuity. It is not a serious economic issue in the United States. The farmer or his heirs may choose one day to sell the farm, and the next owner will not be time-limited for the period of ownership. But the optimal period of time for the copyright, or so many economists would agree, is far short of perpetuity. What distinguishes the optimal length of title for land and intellectual property? No consistent economic argument applies to one and not the other. Few if any economists would suggest a net present value calculation for a farmer making an initial acquisition of a farm. Yes, it is true that the 35-year old farmer acquiring a farm and intent on working the land all his life has little likelihood of personally noticing the difference between a 70-year lease and an 80-year lease. But the same farmer may change his mind after a few years and discover the relative difficulty of selling a leasehold asset relative to a freehold asset. The farmer’s heirs would likely notice an appreciable difference. At least in the United States, while no legal barrier precludes a contract for a fixed-period leasehold on property, it is a rare contract that such leaseholds beyond 10 or 20 years are less than perpetuity or freehold. Moreover, the exercise of long-term leaseholds allows property to revert to the initial owner, not the public domain. Few if any economists in the United States would argue that, after 70 years, land should transfer to the public domain without any further private property rights. The net result, obviously, would be that all land would ultimately reside in the public domain. 2. One can usefully examine intellectual property as economic “monopolies.” The legal jurisprudence-and at times, even the economic literature--of intellectual property has unfortunate and even confusing usage of ordinary English words. The most striking example is the word monopoly. The word evokes economic images, and within the realm of economics, monopoly has a precise meaning in the context of a market. A single provider to a market, without plausible threat of another provider, has the opportunity to exercise certain and predictably harmful economic behavior in a market. Monopolists do not exist without a market. Of the countlessly many markets in the world, few have monopolists; to contemporary economists, monopolists are rare, intriguing curiosities. In the realm of intellectual property, monopoly is a pedestrian term. For example, in Sony, the Supreme Court describes the Copyright Clause as conferring “monopoly privileges” (8). Justice Breyer provides historical interest about references to “monopoly” and the Copyright Clause by the Founding Fathers in their personal correspondence, but ultimately the history does not support the argument that each form of intellectual property, and copyright in particular, is a “monopoly” (9). Justice Breyer provides the historical context presumably precisely because the Constitution itself makes no reference to monopolies in the Copyright Clause; the association is merely the embroidery of an economic term weighted with specific meaning on a single in the Constitution, completely devoid of the economic meaning of the term two centuries later. In economic parlance, the millions of copyrighted works issued each year in the United States have many characteristics; monopoly is not one of them. Of course some forms of intellectual property may well define a market by itself without close substitutes, and in these exceptional cases, the description of “monopoly” may legitimately apply. Thus a patent covering a unique drug that cures a certain disease for which there is no other treatment may construed to be a monopoly for the market for treatments for the certain disease. Of the millions of expressions and forms of intellectual property generated each year, these “monopoly” instances are profoundly rare, and quite possibly never in the realm of copyrighted works. 3. The First Amendment strongly favors the market outcome of dissemination of copyrighted works in the public domain. The United States Constitution is simple and brief. Within its elegant cloth has been embroidered much that its simple words do not directly betray. Justice Breyer interprets the Constitution and the United States as follows: “in a Nation constitutionally dedicated to the free dissemination of speech, information, learning, and culture” (10). Here is a powerful image evoked by Justice Breyer, but only two of its words-free and speech-are found in the Constitution. And those two words are not found in combination. The other words -- dissemination, information, learning, and culture - were doubtless as familiar to the Framers as they were not chosen for use. Yet the United States may very well be “a Nation constitutionally dedicated to the free dissemination of speech, information, learning, and culture” even without specific words in the Constitution. Does intellectual property protection under copyright law in any way erode such a constitutional dedication? Free versus compelled dissemination Justice Breyer at the outset of his dissent entertains, if indeed he does not fully accept, claims that a copyright law such as the 1998 Sonny Bono Copyright Term Extension Act of 1998 restricts the dissemination of speech: “Consequently, I would review plausible claims that a copyright statute seriously, and unjustifiably, restricts the dissemination of speech” (11). According to Justice Breyer, practically all copyright laws restrict the dissemination of speech and impose costs on the public:
Protected speech under the First Amendment has little meaning if Congress or the government can compel speech or preclude silence. Similarly, protected speech has little meaning if the government can dictate the composition of an audience. The choice of silence or a spoken word is substantially limited if any spoken word cannot be targeted to a limited audience. Expressions of love, gratitude, apology, and other ideas have substantially altered meanings if the speaker cannot select the audience. Even the singing of a song or the drawing of a picture have intended audiences; when artists cannot target an audience, opportunities for the subtleties that define artistic expression are limited if not lost. Copyright law does not militate against the First Amendment; rather, copyright law reinforces it. A copyright holder controls the dissemination of copies of a work. The holder may set the terms and conditions under which a copyright work may be reproduced or transmitted. Neither the government nor a private party, except as bound by contract, may compel a copyright holder to release a work to be copied, transmitted, sold, or disseminated. The absence of a governmental or private authority to compel the distribution of an asset is not peculiar to intellectual property or copyright law. The compelled distribution of an asset is the exception rather than the rule of most forms of law. Outside of communism and socialism, compelled distribution of assets is even more peculiar in most rational discussions of economics. Consequently, it is difficult to conclude that the First Amendment favors the public domain over the private domain. 4. Intellectual property has greater value to the public and promotes economic growth, when it resides in the public domain rather than in the private domain. Justice Breyer asserts: “I would find that the statute lacks the constitutionally necessary rational support (1) if the significant benefits that it bestows are private, not public” (13). It is a rather breathtaking statement. Practically all property, by its very nature of exclusivity, has private benefits. It is difficult to conceive of meaningful property that has no private benefit. But the existence, and even the substantial wealth, of private benefits does not mean that social benefit does not follow. Society benefits generally from a system of private property. It provides incentives for economically and socially beneficial exchange, innovation, maintenance, and entrepreneurship. Take away the private nature of property, and no magnitude of “social” benefits will likely outweigh the social loss from the erosion of private property rights. Seeking private permission to use property versus government taking of property Justice Breyer expresses concern about the limited dissemination of many copyrighted works, particularly those of an old vintage. He blames the limited dissemination on the “permission requirement” of copyright law: copyright holders must permit the reproduction of a work (14). He also expresses alarm that many motion pictures of the early 20th century cannot lawfully be preserved because of an absence of clear copyrights to enable such preservation (15). Why should copyrighted work be different from other forms of property in the control that owners exercise over its use? For practically all forms of property, owners must grant permission for others to use it. Property has limited meaning when its use is unrestricted. There is little doubt that many copyrighted works lie fallow and unused, and that some, without investments to preserve them, will be lost forever. Others still can doubtlessly be employed to generate greater value. The same may be said about many forms of property. Perhaps a fallow field ought to be cultivated, but the disposition of the field is the choice of its owner, not the whim of a passerby. A house in disrepair ought to be repaired, but again the choice is that of its owner, not the busybody neighbor. The inference should not be drawn that a system of private property should be respected no matter how irrational property owners may be. Rather, the inference should be that there is no greater rationality than that of the property owner, and substituting the judgment of a third party for the disposition of assets can lead to nothing short of anarchy and mischief. No doubt the attics and closets of America contain a great many unused treasures. A do-gooder might seek to compel a public scavenger hunt of the private attics of America and compel the public sale of those unused or underutilized assets so discovered. Where does the public scavenger hunt to put assets to a higher economic use lead? It leads to personally subjective judgments, reprehensible results, and a complete debasement of property. If higher economic use is the standard to compel the transaction or distribution of property, then no property is safe. The wedding band that graces the gnarled finger of an octogenarian might be taken away by a do-gooder convinced of some higher economic value, perhaps to grace the finger of a younger and more beautiful hand, or the finger of the do-gooder. When a copyrighted work ceases to be private It might be argued that a copyrighted work ceases to be a purely private asset because of a compelling public interest in its public use. No doubt, there are examples of private assets of such compelling public interest that the government has seized them and compelled their sale to the government under eminent domain. Historical sites, land to be used for national parks, and even land for the construction of roads have all been transferred, at times by coercion, from the private to the public sector. The exercise of eminent domain, however, has three key elements lacking in Justice Breyer’s constitutional allegory of “free dissemination.” First, eminent domain is the exception rather than the rule for the disposition of private assets. The government must make specific showings to exercise eminent domain, and only a small proportion of private property-and no entire class of private property-- has been subjected to eminent domain. Justice Breyer’s “free dissemination” presumably would apply to all intellectual property. Second, eminent domain transfers private assets for a specific public use, not for generalized private exploitation. The government alone can exercise eminent domain, and eminent domain cannot be used by the government to compel the transfer of an asset from one private party to another private party. Yet it is private dissemination for private benefit of a third party’s private asset that animates Justice Breyer’s “free dissemination” discussion. He does not envision an eminent domain determination much less government control and distribution. It is simply private taking for private benefit. Third, eminent domain involves compensation to the private party for the government taking of an asset. While Justice Breyer does not explicitly preclude compensation to the copyright holder, he clearly does not view such holders as having the same bundle of rights as other property holders, whether it is the duration of the copyright term or the ability to limit distribution. Free versus costless dissemination Justice Breyer is concerned about the costs imposed on the dissemination of works associated with copyrights laws generally:
As troubling as these statements are to an economist, the explanations are truly alarming. As Justice Breyer explains: “The first of these costs translates into higher prices that will potentially restrict a work’s dissemination” (17). Of course, demand is inversely related to price. It does not however follow that the optimal dissemination is as wide as possible or that the optimal dissemination is free or costless or that the optimal price is zero. Yet all of these dubious premises seem to form part of the foundation of Justice Breyer’s statement. No doubt, higher prices of petroleum lead to reduced demand for petroleum products. It does not, however, follow that the government has an interest in seeing higher or compelling lower petroleum prices, simply because lower rates would benefit consumers. Of course, statutory royalty rates, as with any statutory or regulatory rate setting, reflect maximums permitted under law. Nothing precludes a willing copyright holder from negotiating a lower royalty rate with a willing licensee. Justice Breyer’s explanation of the second objection is equally disturbing. “The second means search costs that themselves may prevent reproduction even where the author has no objection. Although these costs are, in a sense, inevitable concomitants of copyright protection, there are special reasons for thinking them especially serious here.” Left unspoken, however, is that the requirement of the consent of the copyright holder prevents reproduction where the author or holder does have an objection. By Justice Breyer’s logic, it is unfortunate that any individual must obtain prior consent to use any form of a third party’s property because there is a chance that the third party may not object. In a society mindful of private property, an individual may distribute those assets and services he or she lawfully owns or controls. I can sell my car or my time, but I am not at liberty to sell a car I find on the street or to rent the labor of an individual who has not willingly entered into a contract with me. Similarly, I can speak my views and disseminate them as widely as I can, but I have no authority to speak for someone else, much less disseminate and represent my views as being theirs without their authority. Such a dissemination of someone else’s views might be free to me but very costly to them. The relationship between intellectual property protection and economic activity Justice Breyer makes the peculiar observation that an extension of copyright term limits would “inhibit” the “progress of ‘Science’” (18). While he never explicitly states that copyrights interfere with economic activity, Justice Breyer’s dissent never recognizes the value that intellectual property protection generally, and copyright protection in particular, contributes to economic activity in intellectual property in the United States (19). Only a naive nationalist could suggest that creative talent is found in some countries and not others. Doubtlessly since times unrecorded--and long before any form of organized statutory laws much less intellectual property law--people around the world have sung songs, told stories, stepped through dances, and conveyed to others rich and subtle expressions of what today would be characterized as creative talent. In more recent times, creative individuals around the world write books, record music, produce video programs, and write computer programs. People are endowed by the Creator, not by man-made laws, with talents; those talents are distributed far and wide. Despite the widespread distribution of human talent in creative expression, the generation of income and wealth from these creative expressions is highly skewed. It is practically absent in most countries, and yet it forms a substantial portion of the income of a few countries, the United States in particular (20). What leads to income and wealth associated with creative expression? The value of exclusivity Justice Breyer mistakes copyright royalty payments as benefiting only the copyright holder. Licensees pay royalties not because they value works at less than the royalty amount, but precisely because they value the work at least as much as the royalty payment. In an example that shows the opposite of what he intended, Justice Breyer laments that United Air Lines must pay $500,000 for the rights to Gershwin’s Rhapsody in Blue (21). United Air Lines pays the royalty because they value the work at far more than $500,000, and as part of the payment they doubtlessly negotiated some form of exclusivity for its use. United Air Lines could have avoided the copyright royalties by selecting a work from the public domain, but such choices do not provide opportunities for exclusivity. In the 1960s and 1970s, more than one national advertising campaign employed Rossini’s William Tell overture as had the Lone Ranger show in the 1940s and 1950s. The net result was that consumers associated different brands with the dramatic music; individual companies could not fully capture the value of brand identification with the music. 5. The optimal length of a copyright term is no more than the life of the author, and the most harmful intellectual property term is perpetuity. While recognizing that the public benefits from private incentives to create under copyright law (22), Justice Breyer argues that extending the term of copyright protection “will not act as an economic spur encouraging authors to create new works” (23). He finds no benefit to term extension (24). Of course, the term of copyright protection is only one factor in the creation of intellectual property. It would be simplistic to argue that changing the term by a decade or two after several decades of protection has an overwhelming effect on creativity; but it is probably equally incorrect to include that it has no effect. Justice Breyer suggests that the optimal copyright term can easily be determined based on a simple present value calculation (25). Implicitly, according to Justice Breyer, there is no rational or economic reason to have a copyright term beyond an author’s life: “No potential author can reasonably believe that he has more than a tiny chance of writing a classic that will survive commercially long enough for the copyright extension to matter” (26). And Justice Breyer asserts that the bequest motive of authors is weak at best: “And any remaining monetary incentive is diminished dramatically by the fact that the relevant royalties will not arrive until 75 years or more into the future, when, not the author, but distant heirs, or shareholders in a successor corporation, will receive them” (27). At first glance, these arguments seem reasonable, but they could be applied with equal force-and equal absurdity--to practically any form of property. A seller of a house receives a lump-sum payment for the freehold rights to a house. The net present value calculation for a leasehold of 75 years should be similar to such a calculation for a freehold on the house. As Justice Breyer notes, “And from a rational economic perspective the time difference among these periods makes no real difference” (28). It does not follow, however, from the similarity in net present value calculations, that all real estate should be sold on 75-year leases. There is substantial value in freehold property that is not captured in a simple net present value calculation at the time of the initial transaction. The same calculations of value can be made for all forms of property; only for intellectual property does Justice Breyer argue for a limited duration of property rights. In a world of static property-no creation of new property and no deterioration in property over time-the net present value arguments that Justice Breyer presents could equally well defend a 75-year property right and a permanent property right. But in a world with both creation and deterioration of property, longer rather than shorter terms of property ownership are all the more important. At least three reasons suggest themselves: (1) value in bequest, (2) value in management and maintenance, and (3) value in commercial trade. As noted above, Justice Breyer dismisses, incorrectly, the bequest motive in property rights as an incentive to create. Moreover, when property reaches the end of its lease, incentives to maintain and invest in the property are substantially diminished. Justice Breyer even bemoans the lack of investment and maintenance of aging copyrighted works (29). Yet management of intellectual property, as opposed to its creation, has substantial value. Businesses ranging from local newspapers and drycleaners to Disney and McDonald’s add value by managing the intellectual property of images for which they hold the copyrights. The value added from managing the intellectual property creates demand for the artists and authors of intellectual property. The longer the intellectual property can be held and managed, the greater the demand, not just for existing works, but for practicing artists and authors to create new works. The value of managing these works goes far beyond the simple net present value calculations that Justice Breyer suggests. An artist may not live to see the end of a copyright term, but he or she can capitalize today on increasing demand for copyrighted works into the future. Finally, and most importantly, copyrighted works, like other forms of property, can be traded and sold. The greater and the clearer the bundle of property rights associated with intellectual property, the higher the prices for those rights, and the more robust the market for those rights. Unlike the analyses Justice Breyer suggests, most copyrighted works are not in their initial year of creation. As a work nears the end of its copyright protection, it is more difficult to market the rights to a copyrighted work. The same is true for other forms of property. It is difficult, for example, to sublease office space in the final few years of a lease for office space. Potential office tenants want longer terms to use office space. The same is true for copyrighted works. Conclusion Justice Breyer’s dissent in Eldred suggests several economic reasons why copyright terms should not be extended. Each argument, although persuasively presented, is incorrect. There may well be good reasons to limit the terms of copyrights; economics, however, provides little justification. The views, reasonable or unreasonable, of Supreme Court justices should not be viewed in isolation. Supreme Court opinions reveal much not only about the status of American law but also about the broader contours of underlying American intellectual thought. The opinions are the final distillation of intellectual ferment. They begin as the exposition of legal disputes brought to the Supreme Court by gifted lawyers presenting intellectually defensible arguments written by clever legal hands and articulated by the most persuasive of legal tongues. In turn, the Supreme Court opinions are drafted by the finest young legal minds under the tutelage of the Supreme Court justices. The final Supreme Court opinions are thus the refined essence of repeated distillations of intellectual thought. Justice Breyer’s dissent reflects views not uncommonly held in some academic and business circles that intellectual property would better fit in the public rather than the private realm. Footnotes (1) Eldred v. Ashcroft, 53 U.S. __ (2003). (2) Ibid., Breyer dissent, at 1. (7) Ibid., at 4, quoting Stewart v. Abend, 495 U.S. 207, 228 (1990). |