10 Yale J.L. & Tech. 45

Copyright law is not distinctively designed for redistribution. And yet, numerous fairness scholars and other critics of the economics paradigm claim that copyright law should be based upon redistribution, rather than efficiency. Redistributive justice goals intrinsically play a role in the design of the copyright commons, but whether copyright law should itself serve as the means of achieving such goals is truly questionable. This Article argues instead that, subject to narrow exceptions, copyright law doctrine should not promote redistributive justice concerns and that other, more efficient areas of law such as taxation and welfare programs should do so. This argument accords with the prevailing welfare economics approach to copyright jurisprudence and emphasizes the latest Peer-to-Peer (P2P) file sharing litigation. This Article focuses on the leading classes of individuals subject to the distributive injustice that has emerged on the internet: poor infringers, poor creators and wealthy copyright holders. This Article argues that, for at least these three classes of individuals, redistribution through copyright law offers no efficiency advantage over redistribution through the income tax system and other legal transfer mechanisms.