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Richard Epstein and Real vs. Intellectual Property

August 9, 2007

For those of you who find that you are looking for the fourth circle of hell as relief from enduring the “distinctions” between tangible property and intellectual property spewed by the EFFluviati and other fellow travelers of Professor Lester Lawrence Lessig III (affectionately known as “Trip” Lessig in these pages), you “must read” The Structural Unity of Real and Intellectual Property by Professor Richard A. Epstein, James Parker Hall Distinguished Service Professor of Law, University of Chicago and Peter and Kirsten Senior Fellow, The Hoover Institution at Stanford University.

My first encounter with Richard Epstein was when I was in my first year of law school, and my reaction as a budding lawyer was similar to the reaction I had as a budding drummer (then age 7) when I first saw Buddy Rich. (“…I don’t know why I thought I could do this, I’ll never be any good at it, I have to leave and go home and practice right NOW…”) Fortunately, I stuck with it and it goes to show you how far hard work can advance over a lack of talent. I imagine young Trip was in the YAFs right about the time I first saw Epstein, so not sure if he ever had a similar epiphany. Almost surely he got his from a different philosophy.

Epstein is really fantastic, and as much as I enjoy reading him, if you ever get to see him speak you really should go. I swear I never him saw him look at notes once, and you could have transcribed his speech and sold it as a book with little or no editing (footnotes and all).

He also wrote Takings, an exposition on the protections of the takings clause in the U.S. Constitution and the protections it offers against a wilfull government. It’s a book that is as timely today as it was in 1985 when it changed my view of the law profoundly–if not even more important. This, too, is a must read for any American jihadi in the anticopyright crowd (starting with the Berkman Center), particularly those wishing to use the government to destroy the entertainment business.

Of course the U.S. government is doing a pretty good job of destroying the entertainment business all by itself due to the arrogance of its inaction in prosecuting the copyright laws.

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