Courts and commentators often claim that copyright policy strikes a delicate balance between public and private interests. I see copyright policy in a different pose, however. I see it wobbling precariously, tipping over, and falling into statutory failure. What has put copyright on such unsure footing? The brutish prodding of special interests. Rather than “delicately balanced,” then, I describe copyright policy as “indelicately imbalanced.”
Perfect policy equipoise will always elude us. We don’t have the numbers necessary to put copyright’s many various factors into exact balance. How can we quantify the importance of Picasso’s Guernica, for instance, or of Dr. Suess’s, Yertle the Turtle? In most cases, the numbers simple do not exist. What numbers we can pin down, moreover, appear to us only in a haze of uncertainty. Yertle the Turtle
We can, however, keep an eye open for evident policy disasters, taking care to steer clear of obvious hazards. We should moreover guard against letting copyright maximalists seize the tiller, lest they overemphasize private interests to the detriment of public ones. We should instead take the Constitution as our lodestar, following its call to “promote the general Welfare” and “the Progress of Science and useful Arts” by checking the excesses of copyright policy.
[NB: The above text comes from part of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. Specifically, it comes from the introduction to Part I, Chapter 3: The Indelicate Imbalancing of Copyright Policy. You can find a complete draft of the full chapter, together with footnotes, here [PDF]. I welcome your comments.]