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53 U. Pitt. L. Rev. 235 (1991-1992)
Copyright as Myth

handle is hein.journals/upitt53 and id is 245 raw text is: ESSAY
Jessica Litman*
It has become fashionable to seek to formulate, or reformulate,
copyright law as an expression of overarching grand theory. Perhaps
the most prominent manifestation of this trend has been the recasting
of copyright law in the mold of economic incentives;1 a more recent
upstart competitor seeks to reclaim the debate by invoking the philo-
sophical precepts of Hohfeld, Hegel and Locke.2 Occasionally, the liter-
ature gives us polite debates about which of the competing theoretical
models is more misguided.3 Meanwhile, another voice in the copyright
* Professor of Law, Wayne State University. B.A., 1974, Reed College; M.F.A., 1976,
Southern Methodist University; J.D., 1983, Columbia Law School. This essay is based on a paper
delivered at the Society for Critical Exchange Conference on Intellectual Property and the Con-
struction of Authorship, at Case Western Reserve University on April 21, 1990. I am grateful to
Jonathan Weinberg, Avery Katz, Pamela Samuelson and Wendy Gordon for their helpful
Richard Adelstein & Steven Perez, The Competition of Technologies in Markets for Ideas:
Copyright and Fair Use in Evolutionary Perspective, 5 INT'L REV. OF L. & ECON. 209 (1985);
Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies,
and Computer Programs, 84 HARV. L. REV. 281 (1970); John Cirace, When Does Complete Cop-
ying of Copyrighted Works for Purposes Other than Profit or Sale Constitute Fair Use? An
Economic Analysis of the Sony Betamax and Williams & Wilkins Cases, 28 ST. Louis U. LJ.
647 (1984); William W. Fisher, III, Reconstructing the Fair Use Doctrine, 101 HARV. L. REV.
1659, 1698-1744 (1988); Wendy J. Gordon, Fair Use as Market Failure: A Structural and Eco-
nomic Analysis of the Betamax Case and its Predecessors, 82 COLUM. L. REV. 1600 (1982);
William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. LEGAL
STUD. 325 (1989); Peter S. Menell, An Analysis of the Scope of Copyright Protection for Appli-
cation Programs, 41 STAN. L. REV. 1045 (1989).
2. E.g., Fisher, supra note 1, at 1744-83; Wendy J. Gordon, An Inquiry into the Merits of
Copyright: The Challenges of Consistency, Consent and Encouragement Theory, 41 STAN. L.
REV. 1343 (1989); Justin Hughes, The Philosophy of Intellectual Property, 77 GEo. LJ. 287
(1988); Linda J. Lacey, Of Bread and Roses and Copyrights, 1989 DUKE LJ. 1532; Alfred C.
Yen, Restoring the Natural Law: Copyright as Labor and Possession, 51 OHIo ST. L.J. 517
(1990); Symposium On Law and Philosophy, 13 HARV. J.L. & PUB. POL'Y 757 (1990).
3. E.g., GOLDSTEIN, supra note 1, at 8-9; Tom G. Palmer, Are Patents and Copyrights
Morally Justified? The Philosophy of Property Rights and Ideal Objects, 13 HARV. J.L. & PUB.

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