I Might Be Wrong

You may have heard of the Supreme Court’s awful decision last January in Eldred v Ashcroft, upholding the consitutionality of the Sonny Bono Copyright Term Extension Act (CTEA). CTEA extended the length of copyright terms by twenty years. My friend Marvin Ammori has written an excellent analysis of Eldred issues. Economics-minded folks should make sure to check out the amicus brief by Milton Friedman, Kenneth Arrow, Ronald Coase, et al. opposing the CTEA.

There are innumerable reasons to support a reduction in the length of copyright terms. You can find a good summary at eldred.cc.

Larry Lessing and other have proposed an innovative measure for returning works to the public domain. If you support it, please take a minute to sign this petition.

Reclaiming the Public Domain: a Beginning …

If you go to law school today, you’ll rarely hear the words “justice,” “morality,” or “fairness.” No, the word used most often to assess the legal order is “efficiency.” From the ever-forthcoming William Allen & Reinier Kraakman, Introduction to the Law of Enterprise Organizations:

     Pareto reasoned that a given distribution of resources is efficient when and only when resources are distributed in such a way (within a different group or territory) that no reallocation can make at least one person better off, while leaving no person worse off. Economists refer to this hypothetical state as Pareto Efficient or a Pareto Optimal state…
     [This is] a difficult definition to use in non-theoretical settings. Another definition of efficiency loosens the constraint of this condition. Two English economists, Nicholas Kaldor and John R. Hicks, each addressed the problem of externalities in their conception of efficiency. Under their definition, an act (or a rule) would be said to be efficient if the transaction produced total gains to those who consented to it that are sufficient to permit the payment of compensation all of those who suffered any losses as a result of the transaction. Note that it is not stipulated that any compensation actually be paid. Kaldor-Hicks is simply attempting to identify transactions that are efficient, not to establish a principle of justice. The idea here is that we live in a world of imperfect and costly information. Third parties who incur losses of some sort as a result of the transaction may not know of their losses. Or if they know of them, the law may give them no recourse for damages, or such recourse as the law provides may be too expensive in light of the size of their loss. In all events, there will be uncompensated losses from certain transactions. These are in principle and in fact made worse off by the trade. Under Kaldor-Hicks’ conception, however, so long as the transactions gains are great enough to compensate them in principle, the transaction would be regarded as efficient: as moving closer to an optimal distribution. In other words, Professors Kaldor and Hicks posited that total (net) wealth creation is the sign of an efficient transaction…
     [Kaldor-Hicks efficiency] is the standard definition employed when law and economics scholars criticize corporate law doctrine or practice.

Kaldor-Hicks Efficiency …

I often find myself going back to my Property casebook (Joseph W. Singer, Property Law: Rules, Policies, and Practices (2d ed. 1997)) to look up certain passages. The first, on p.157, is an excerpt from Arthur Corbin, Jural Relations and their Classification, 30 Yale L.J. 226 (1921):

The concept that the giant will aid A by forcibly controlling B’s conduct we express by saying that A has a RIGHT. If the giant will not so aid A, he has NO RIGHT. If the giant will aid B by using force to control A’s conduct, A has a DUTY. If he will not so aid B, and A is free from such constraint, this fact is expressed by saying that A has a PRIVILEGE. If A can, by his voluntary act, influence the giant’s conduct with respect to B, whether to act or not to act, and whether presently or contingently, A has a POWER. If A cannot do this, he has a DISABILITY. If B can, by his voluntary act, influence the giant’s conduct with respect to A, A has a LIABILITY. If B cannot do this, A has an IMMUNITY.

The second, on p.159, is an excerpt from Joseph W. Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 Wis. L. Rev. 975:

Hohfeld’s concept of “opposites” conveys the message that one must have one or the other but not both of the two opposites. For example, with regard to any class of acts one must either have a right that others act in a certain manner or no right. Similarly, one must have either a privilege to do certain acts or a duty not to do them.

The concept of “correlatives” is harder to grasp. Legal rights, according to Hohfeld, are not merely advantages conferred by the state on individuals. Any time the state confers an advantage on some citizens, it necessarily simultaneously creates a vulnerability on the part of others. Legal rights are not simply entitlements, but jural relations. Correlatives express a single legal relation from the point of view of the two parties. “[I]f X had a right against Y that he shall stay off the former’s land, the correlative (and equivalent) is that Y is under a duty toward X to stay off the place.” If A has a duty toward B, then B has a right against A. The expressions are equivalent. Similarly, privileges are the correlatives of no-rights. “[W]hereas X has a right or claim that Y, the other man, should stay off the land, he himself has the privilege of entering on the land; or in equivalent words, X does not have a duty to stay off.” If A has no duty toward B, A has a privilege to act and B has no right against A. Thus, if A has the privilege to do certain acts or to refrain from doing those acts, B is vulnerable to the effects of A’s actions. B cannot summon the aid of the state to prevent A from acting in such a manner no matter how A’s actions affect B’s interests.

In any legal dispute, where A is seeking redress from the giant/state and B is resisting the request, several ideas follow from this analysis:

1.  The state has no choice but to assign A either a right or no right, and B either a duty or a privilege. Whether the state acts or does not act in favor of A, the state will be assigning something. In this sense, non-action is just as regulatory as action.
   
2. The state’s selection of what to assign A automatically and inevitably determines what the state assigns B. If the state assigns A a right, it simultaneously assigns a duty to B to respect this right. If the state assigns A no right, then B is assigned a privilege to act accordingly.

Hohfeldian Terminology …