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Locking Out Locke: A New Natural Copyright Law
Joseph A. R. Gerber*
Note

  The full text of this Article may be found here.

27 Fordham Intell. Prop. Media & Ent. L.J. 613
Note by Joseph A. R. Gerber*

ABSTRACT

[F]

or decades lawyers, professors, philosophers, and law students have been trapped in an endless, two-sided debate regarding the justification for copyright law in the United States. On one side stand the utilitarians, who argue that modern American copyright law amounts to nothing more than positive law in the form of an economic incentive for authors to express themselves creatively. Natural law theorists, on the other hand, argue that there is some- thing more substantial behind the current copyright regime—that copyright is not merely a formulation of positive law, but a recognition of philosophical principles of ownership inherent in the natural order of the world. Discourse on this subject has resolved little, all the while exposing flaws for anti-copyright proponents to exploit along their path toward a complete[ly destructive] public domain. For this reason, copyright advocates desperately need a new theory—one that replaces the questionable reliance on John Locke but also incorporates the economic incentives argued for by the utilitarians. This Note attempts to start that process by rebuilding the understanding of copyright law from a teleological perspective. Part I outlines the arguments on both sides of the copyright law debate, including their weaknesses. Part II introduces an Aristotelian natural law theory, and Part III applies these principles to the U.S. Constitution. Part III also explores the consequences of think- ing teleologically about the Copyright Clause of the Constitution. Finally, Part IV explains how this new perspective both aligns with current copyright jurisprudence and answers some of the field’s most vexing questions that are crucial amid a growing anti- copyright movement.

*Senior Notes & Articles Editor, Fordham Intellectual Property, Media & Entertainment Law Journal, Volume XXVII; J.D. Candidate, Fordham University School of Law, 2017.