Balganesh, S. (2017). The Immanent Rationality of Copyright Law [Review of What’s Wrong with Copying?, by A. Drassinower]. Michigan Law Review, 115(6), 1047–1069.
Key takeaways
From the reading, NOTE-1017.
- Drassinower’s thesis, as reported. Copyright protects “the integrity of the work as a communicative act” (p. 1051, quoting the book at 8). The right inheres in persons as speakers. Infringement is the communicative reproduction of a work, wrong as “compelled speech”: the defendant speaks for the author without consent (p. 1053).
- The derivation. Independent creation (speaking in one’s own words) anchors originality and the defence alike, and implies the equal right of every other author. The idea/expression line, transformative use, Baker v. Selden, the public domain and the line between limitations and exceptions are derived from it (pp. 1051–1054).
- A defence of rationalism. Against Lemley, a theory that cannot be tested empirically is not therefore faith-based. Demonstrability is not empirical verifiability, and welfarism’s own premise is untestable too (pp. 1056–1061).
- Four objections. No criterion of what is fundamental, so coherence may decide essentiality (fixation is omitted). Explanation and justification are run together without a defence of autonomy. The private-law structure of enforcement is assumed and not explained. The rationality is taken as static and pervasive, so courts’ consequentialist reasoning goes unexplained (pp. 1055–1068).
Standing in the record
Filed on 2026-10-20 at the owner’s request, with Tushnet’s Worth a Thousand Words (LIT-1303), as reading on what copyright law thinks a work is. Drassinower’s book is being filed separately the same day; this review is the record’s second-hand account of it until that book is read, and a reading of the book should check the account against it. Its bearing on CLAIM-210, CLAIM-061 and CLAIM-002 is set out in the reading.