One final comment from me, and then I’m going to stop. Because the other commenters (including Mike) are right: this is a story about the success of Kickstarter, not about the relative merits of copyright law.

I never said that liability for infringement is the same as unjust enrichment.

Here’s exactly what you asked: “Why won’t you talk about fundamental issues, like unfair competition and unjust enrichment, directly?”

And you have your answer: copyright infringement is fundamentally not about “unfair competition” or “unjust enrichment.” Something can be “unjust enrichment” (under your one-sentence definition) without being copyright infringement; something can be copyright infringement without being “unjust enrichment;” and many cases of “unjust enrichment” are not (and should not be) unlawful at all.

Personally, I would love it if copyright infringement was limited to just “unjust enrichment.” But that would mean a total revision of copyright statutes: decriminalization of non-commercial infringement, elimination of statutory damages, placing the burden of proof upon the rights holder to show actual economic harm, and so forth. But that’s not how it works.

Sweat of the brow is necessary, but not sufficient, for copyright protection. Copyright incentivizes, via exclusionary rights, new works by rewarding those who commit time, energy, money, and skill into the creation of new works.

No, it rewards anyone who authorizes a creative work. It matters not one whit how much time, energy, money, and skill went into that creation.

I could invest years of time, and many thousands of dollars, to go to college for music theory, write a symphony, hire musicians to perform it on a recording, and release it. Or, I could release a recording of me throwing my roommate’s guitar down the stairs. And copyright protects both works equally.

If this were not true, then damage awards would be different depending upon the sunk costs that went into each recording. They are not.

You are purposefully ignoring the Lockean overtones the Court used there

And “overtones” they must remain, for if they meant it as anything other than dicta, they would be at odds with hundreds of years of Supreme Court copyright rulings (including the very first) and Congressional opinions that say the opposite. I’ve already quoted dozens to you, I don’t see the point in doing it again.

They would also be going against the copyright statutes. If copyright really was designed primarily to reward “sacrificial days devoted to such creative activities,” then the amount of “sacrificial days” would affect a work’s copyright status. It does not, in any way, shape, or form.

No, I’m acknowledging that the two are intertwined.

Of course the method is intertwined with the purpose of that method. It would hardly be a method if it didn’t. That doesn’t mean we should confuse the two, or put them on equal standing.

I guess you think that 7/9 Supreme Court Justices are wrong too.

No, because nothing in that passage contradicts anything I’ve been saying. Pay attention to the wording. The purpose – the goal – is “to advance public welfare,” “the proliferation of knowledge,” and “the progress of science,” and to “serve public ends.” Copyright is the “encouragement,” “the incentive,” or “the engine” – that is, the method by which that purpose is achieved. The Supreme Court said merely that the method is effective in achieving its purpose, nothing more. Justice Stevens’ quote from U.S. v. Paramount may have been considered “overstated,” but it is not false.

They are not saying, as you seem to be, that authors’ rights are synonymous with the public good – that granting authors more rights will automatically benefit the public. That idea is absurd.

As to how best interpret the “promote the progress” preamble, I’m sure we disagree.

But the Supreme Court doesn’t. It is “the proliferation of knowledge,” “the cause of promoting broad public availability of literature, music, and the other arts,” “to induce release to the public of the products of his creative genius.”

Or – as I phrased it – to “enrich” the general public through increased access to artworks. Unless this is the ultimate result, rewarding authors does not “promote the progress.”

Congress gets to decide what it means to promote the progress. It’s not some secret economic function like Mike wants it to be. It’s simply whatever Congress says it is.

And since Congress represents the general public, it is the general public who is supposed to decide what it means to promote the progress. Not publishers, labels, studios, or artists’ unions. Pity that Congress has totally ignored this fact.

Also, Mike has never said it is “some secret economic function.” By design, copyright statutes are a set of government regulations granting monopoly rights to certain producers. There are standard economic theories that deal with those, none of which are a secret to anyone.

Says you. Congress says otherwise, and they’re the ones who get to decide what promotes the progress.

As far as my first sentence goes, Congress says exactly what I said:

In enacting a copyright law, Congress must consider […] two questions: first, how much will the legislation stimulate the producer and so benefit the public; and, second, how much will the monopoly granted be detrimental to the public? The granting of such exclusive rights, under the proper terms and conditions, confers a benefit upon the public that outweighs the evils of the temporary monopoly.

So, I guess you’re referring to my second sentence – that current copyright statutes decrease the “broad public availability” of copyrighted works. I don’t think this is even debatable. Especially since current “anti-piracy” efforts focus almost exclusively on non-profit sharing of works among the general public.

Our contemporary Congressional leaders have written bad laws that run counter to copyright’s purpose. It’s not the first time Congress has put the desires of wealthy special interest groups ahead of the public welfare, and it won’t be the last.