Re: Texaco decision -Reply

To: Nancy Mertzel
From: Glenn Blumstein, Davis Wright Tremaine

       <blumg+aseaear%dwt[_at_]mcimail.com>
RE: Texaco: publisher revenues

Judge Jacob's "Equitable Considerations" argument (here really a reprise of factor 4 issues) floats on two fallacies. First, he hopes to minimize the publisher/revenue concern by severing copyright's interest in creativity from its interest in dissemination. This is not so easily accomplished. An author's noncommercial motive does not diminish her need for a publisher. The more lucrative publishing is, the more publishers (and articles disseminated) there will be. (Buried here, of course, is a difficult to prove assumption that increased publisher revenues will result in increased capital investments in publishing, rather than in potentially higher yielding alternatives. But such, at least, is the economic assumption of most markets). Second, he flatly concludes that publishers already receive a "fair return." Unless the Judge means that increased revenues of particular publishers (as distinct from all producers, existent and potential entrants) can only be achieved through anti-competitive (i.e. "unfair") means (e.g. exercise of monopoly power), and I don't think he does, he likely bases "fair" on some sense of historical earnings. Here, however, he falls prey to the very circular reasoning he criticizes in the majority. Historical rates of return have arguably been depressed since the advent of photocopying. Moreover, few interests are served by the journal market being frozen at historical levels of earnings. Expansion of that market, fueled by increased profitability, would serve both creativity and dissemination. These are the joined goals of copyright. Received on Tue Nov 08 1994 - 22:33:26 GMT