FOREWARD: The Uneasy Case for Copyright: Lessons of Approach and Attitude

Intellectual Property and Copyright and Trademark

Article Snapshot


Robert Brauneis


George Washington Law Review, Vol. 79, No. 6, 2011


The author provides a foreword for Justice Breyer’s seminal article about copyright law.

Policy Relevance

“The Uneasy Case for Copyright” has had continuing significance on the field of copyright law. It continues to be cited and referenced because of the novel and lasting quality of its approach to copyright.

Main Points

  • “The Uneasy Case for Copyright” symposium celebrates the fortieth anniversary of Justice Stephen Breyer’s seminal article on copyright law.
  • Justice Breyer wrote on a variety of topics over his career including: the energy industry, airline deregulation, and statutory and constitutional interpretation. Yet, the symposium chose to honor his copyright article.
  • “The Uneasy Case for Copyright” was the first article that Justice Breyer published as a law professor. It has continued to have lasting significance in its field.
  • The article derives its lasting value from its approach, the two principal components of which were a transparent, pragmatic theoretical framework and gathering empirical evidence and following where it leads.
  • The article displays five virtues in its empirical analysis: “understanding what data would be relevant and where one might get it, the ability to analyze and draw conclusions from the data, the willingness to go wherever the data leads, the humility to understand the data is incomplete, and the prescience to comprehend how circumstances may change over time.”
  • Justice Breyer’s article managed to understand that future circumstances might completely change the nature of copyright, and even though circumstances have changed, the article’s approach and attitude remain valid.
  • The lasting value and significance of the article is displayed by the wide variety of scholarship on copyright law and policy that it continues to inspire. For this reason the article is worth commemorating on its fortieth anniversary.


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