NOTE-1017: Balganesh — The Immanent Rationality of Copyright Law

Contribution

It reconstructs the method of Drassinower’s book as Weinrib’s “immanent rationality” applied to copyright: identify the institution’s essential features, then show they form a coherent whole (pp. 1054–1055). It places the book in the dispute between welfarist empiricism and rationalist theory in copyright, and defends the book’s standing as reasoned rather than faith-based (Part II). It sets out three methodological puzzles the book leaves open (Part III).

Key insight

Drassinower’s theory succeeds at coherence and has not earned essentiality. An immanent account must first say which features are essential and only then show that they cohere. If coherence is allowed to decide what counts as essential, the sequence is reversed, and the account explains whatever it chose to include. The review asks, for instance, “why isn’t “fixation” an essential part of the ensemble that Drassinower identifies?” (p. 1056). The same gap reappears when the book criticizes existing law: to call a rule unjustified because it does not cohere, the book needs a reason why autonomy, or coherence itself, is worth having (pp. 1062–1064).

Assumptions

• Anglo-American copyright. The review’s frame is US doctrine and scholarship; the book also draws on Canadian law (p. 1066).
• The book’s thesis is reported fairly. The review’s account is close and page-referenced but second-hand for this record.
• The reviewer’s own theory. The private-law objection rests on Balganesh’s view that the author’s control over whether to sue is central to copyright, and he says so (p. 1065 nn. 85–86).

Key results

Drassinower’s thesis, as the review reports it (Part I)

• The aim. A normatively coherent account of copyright’s “fundamental features” as a “coherent whole” (p. 1048; book pp. 7–8), against the welfarist account, which explains the institution only by its consequences.
• The work as a communicative act. “[c]opyright law protects the integrity of the work as a communicative act” (p. 1051; book p. 8). Copyright is not a mere property right but a “right inhering in persons as speaking beings” (p. 1051; book p. 56). The Kantian source is Kant’s 1785 essay on the unauthorized publication of books (p. 1054 n. 30).
• Independent creation as anchor. Originality and authorship are about “speaking in one’s own words” (p. 1051; book p. 62). That is why originality ignores the content or merit of the speech and asks only whether it is the author’s own. In claiming protection an author submits “to every other person’s equal right” (p. 1052; book p. 63), so an identical work made independently does not infringe and may be protected in its turn.
• Derived doctrines. The idea/expression dichotomy follows from the equal dignity of authors: owning an idea would make others’ expression of it liable (book p. 69). Transformative use is exempt because the plaintiff is always “an author among authors” (p. 1052; book p. 76). In Baker v. Selden the defendant’s use was not “communicative”, so it did not touch the work as communication (p. 1053; book pp. 92–95). Some uses are therefore “non-use” rather than fair use (book pp. 108–109).
• What is wrong with copying. Infringement, “the communicative reproduction of a work”, is wrong because it is “compelled speech” (book p. 111), “ventriloquism practiced on an unwilling subject” (book p. 113). “By communicating an author’s speech without his or her consent, a defendant purports to speak for the author.” (p. 1053). It takes from the author the choice of what, when, how and whether to speak (book pp. 119–120). This is why attribution is no defence, and why the law draws no principled line between published and unpublished works (book pp. 120–121).
• The public domain. It has an “inherent dignity” (book pp. 158–159) and is not a utilitarian residue. What does not perform the communicative function is outside copyright from the start. An author protects the work as communication “and never beyond”, so the author’s “insistence to be respected as an autonomous speaker thus constitutes itself as a gift to the public” (p. 1054; book p. 182).
• Limitations and exceptions. Limitations are internal to copyright’s juridical order and bound its subject matter and scope. Exceptions are external: special-interest carve-outs, or the meeting of copyright with other juridical interests such as free speech (p. 1054; book pp. 187–216).
• Consequences. All noncommunicative uses fall outside liability (p. 1061; book pp. 8–9), including copying for personal use (p. 1063 n. 79, quoting book p. 9). Protecting computer programs against noncommunicative uses is suspect (p. 1063; book p. 221).

The review does not say that Drassinower limits the right by the structure of dialogue, and the word dialogue does not occur in it. What it reports is the equality of authors as speakers, the plaintiff as “an author among authors”, the public domain as the unprotected part of a communication, and limitations as internal to the right. A reading of the book should check whether dialogue is its own term.

The review’s case for rationalism (Part II)

• Copyright scholarship has married utilitarianism to empiricism, and treats empirical verifiability as “the litmus test of a theory’s legitimacy” (p. 1058).
• Lemley’s essay calls untestable theories faith-based. Balganesh replies that “demonstrability is not the same as empirical verifiability”, with mathematical proof as the example (p. 1059). A rationalist theory invites disagreement with its premises and steps; it does not ask for trust.
• Welfarism’s own premise, that maximizing welfare is the goal, “is just as incapable of being tested through evidence as is Drassinower’s emphasis on individual autonomy” (p. 1060).
• Drassinower’s theory is not status quo apologetics: it would exempt all noncommunicative uses (p. 1061). Its attention to the equality of authors as a collective distinguishes it from deontic theories of the atomistic author (p. 1060).

The review’s objections (Part I end and Part III)

1. Essential or merely coherent (pp. 1055–1056). The book gives no definition of “fundamental”. It seems to take as essential what one cannot imagine copyright without, a mix of the “fixed” and the sine qua non. Fixation, which Congress called a fundamental criterion, is absent. The risk is that the account “emphasizes coherence ahead of essentiality” (p. 1056).
2. Explanation and justification (pp. 1062–1064). Drassinower says his account is “neither descriptive nor normative” (book p. 7). Following Coleman, an explanation need not defend the value it finds; a justification must. The book gives “no independent defense of autonomy” (p. 1063), yet switches into justification when it calls rules at odds with its coherence unjustified (private copying, programs). It then owes a defence either of coherence or of autonomy “as more than just a coherence-inducing ideal” (p. 1063). It also lacks a priori criteria for the fundamental.
3. Private or public (pp. 1064–1066). Keep every substantive rule and remove the civil action, leaving only criminal enforcement at a prosecutor’s discretion. Drassinower’s entitlement would survive almost unchanged. What makes copyright private law is that the author is “the first arbiter of the harm” (p. 1065) and decides whether an unauthorized publication is compelled speech worth suing over. That choice is itself an exercise of the autonomy the book prizes, and the book does not account for it, nor for remedies. If liability’s structure were fundamental, the account would need corrective justice.
4. Static and pervasive (pp. 1066–1068). Courts reason in terms of balance, incentives, market harm and the public interest. Either judges conceal their reasons or they apply a lesser, modern copyright; both answers are unsatisfying. The book assumes its rationality is static across eras and pervasive from doctrine to system. Relax the first and a term like originality could have begun deontic and become consequentialist by “radical semantic evolution” (p. 1068). Relax the second and the doctrines could be deontic while the system serves welfare, as some immanent theorists allow (Weinrib on deterrence). The book admits other values only as external juridical orders (book pp. 208–214).

The conclusion calls the book “a significant and enduring contribution to copyright theorizing” (p. 1069).

Claims

id	claim	strength	support
C1	Drassinower’s account derives the main doctrines of copyright from the work as a communicative act and the equality of authors	strong as report	close summary with book page references
C2	A theory incapable of empirical validation can still rest on reason rather than faith	moderate	conceptual argument (demonstrability, mathematics); welfarism’s premise also untestable
C3	The book gives no criterion for what is fundamental, so coherence may be doing the selecting	moderate	the omitted fixation requirement; no definition in the book
C4	The book moves from explanation to justification without defending autonomy or coherence	moderate	the book’s own “neither descriptive nor normative”; its criticism of programs and private copying
C5	The account neither explains nor justifies copyright’s private-law enforcement while relying on it	moderate	the criminal-only counterfactual; the book’s plaintiff/defendant language
C6	Relaxing the static or pervasive assumption would let the account explain consequentialist judicial reasoning	weak	sketched, with Kraus, Balganesh and Parchomovsky, and Weinrib cited; not worked out

Concepts

• Immanent rationality (immanent intelligibility). Weinrib’s method: understand a legal institution from its own essential features and their coherence, without external goals.
• Communicative act. Drassinower’s term for what a work is in copyright: the author’s speech, not an object.
• Compelled speech. Drassinower’s account of infringement: the defendant makes the author speak without consent.
• Independent creation. The rule that a work made without copying is original and does not infringe, even if identical to an earlier work.
• Non-use. A use of a work that is not communicative, outside copyright altogether rather than excused as fair use.
• Limitations and exceptions. Internal bounds of the right, against external constraints on it.
• Explanation and justification. Coleman’s distinction: saying what a thing is, against defending it.

Connections

The review draws on Weinrib (Legal Formalism, The Idea of Private Law) for method, Coleman and Leiter on explanation and justification, Lemley’s Faith-Based Intellectual Property as the target of Part II, and Kraus on semantic evolution in common-law concepts. It cites Lessig’s The Future of Ideas among theorists of the public domain (p. 1053 n. 29). It cites Balganesh’s own papers on copying, copyright trolls and the obligatory structure of copyright for the private-law objection. Drassinower’s book, What’s Wrong with Copying? (Harvard University Press, 2015), is being filed in this record separately.

Bearing on the record

• CLAIM-210 (sharing a kind versus being a rendering). The sharpest point of contact. Drassinower’s anchor, as reported, is independent creation: a work identical to an earlier one but made without copying does not infringe and may be protected itself (p. 1052). That is CLAIM-210’s distinction in legal form: two works can share everything that would be preserved and still differ in whether one is a rendering of the other, and the law’s wrong attaches only to the rendering. Drassinower gives a reason the distinction matters normatively: the independent maker speaks in their own words, the copier speaks the author’s.
• CLAIM-061 (footing and force). CLAIM-061 says renderings that share content can differ in footing. Drassinower’s account of infringement is a claim about footing: an unauthorized reproduction is wrong because it presents the author as speaking, so that “a defendant purports to speak for the author” (p. 1053). On his account the wrong is not in what is said but in who is made to say it. The record could use this as a case where a change of footing, not of content, is what a community treats as the harm. The review does not use the word footing.
• CLAIM-002 (identity across retellings). Copyright’s copying requirement weights continuity of transmission: similarity without derivation is no wrong. Drassinower’s version adds that what is protected is the work as communication, not the artifact as object, which puts weight on the third of CLAIM-002’s relations, similarity of communicative function, as the thing whose unauthorized transmission wrongs the author. This is the book’s view as reported, and the review does not discuss retellings or translation.
• QUESTION-002 and CLAIM-220 (what survives a rendering). No direct bearing. The review never asks what a reproduction or a derivative work preserves. The communicative/noncommunicative line (Baker) is a line about uses, not about what survives a rendering. Whether the book treats translation as compelled speech is a question for the book.
• NOTE-1023 (Lessig). A real contrast. Lessig complains that copyright regulates every copy, so ordinary digital use needs permission. On Drassinower’s account as reported, copying for personal use is not within an author’s copyright at all and noncommunicative uses are non-uses, so much of the copy trigger Lessig describes would fall away by principle, not by reform. Remix that makes “new expression, meaning, or message” (p. 1052, quoting Campbell) is, for Drassinower, the remixer’s own speech as an author among authors. Lessig argues the same outcomes from culture and economics; Drassinower, as reported, from the structure of the right.
• CASE-100, CLAIM-332, QUESTION-119. No bearing.
• No instruction for machine-learning practice, and not held by the anthology.

Limitations

• Second-hand on the book. This record’s account of Drassinower comes through the review until the book is read.
• The objections are posed, not pressed. Each Part III puzzle is a question the book “would benefit” from answering; the review does not show that the book’s answers would fail. The dynamic and layered alternatives are sketched in a page.
• Part II is partly about Lemley. The defence of rationalism answers an essay that does not discuss Drassinower, and the point that welfarism also rests on an untestable premise is asserted in a paragraph.
• The private-law objection is the reviewer’s own theory. He flags this and sets it aside, but it carries the objection.
• Slips. The book is once called What’s Wrong with Copyright? (p. 1060), and a footnote quotes “idea/expression of dichotomy” (p. 1054 n. 31).

Open questions

• Does Drassinower’s book state the limits of the right in terms of dialogue, and how does it treat translation and adaptation: as the translator’s own speech, or as the author made to speak in another language?
• If an unauthorized reproduction wrongs the author by its footing, does an attributed paraphrase wrong them less than a verbatim copy, and does the book say?
• For the record: is the legal line between independent creation and copying evidence that communities treat the rendering relation of CLAIM-210 as normatively significant apart from what is preserved?