Intellectual Privilege

The Specter of Copyism v. Blockheaded Authors

Tom W. Bell — Tue, 26 Feb 2008 22:16:00 +0000

Just posted on SSRN: The Specter of Copyism v. Blockheaded Authors: How User-Generated Content Affects Copyright Policy. Here's the abstract:

Technological advances, because they have radically lowered the costs of creating and distributing expressive works, have shaken the foundations of copyright policy. Once, those who held copyrights in sound recordings, movies, television shows, magazines, and the like could safely assume that the public would do little more than passively consume. Now, though, the masses have seized (peacefully acquired, really) the means of reproducing copyright works, making infringement cheap, easy, and, notwithstanding the law's dictates, widespread. Copyright holders thus understandably fear that their customers have begun to treat expressive works like common property, free for all to use. That, the specter of copyism, does risk upsetting copyright policy, leading to a market failure in the production of expressive works. Even as we recognize that threat, however, we should also appreciate that technological advances have greatly reduced the costs of creating and distributing new works of authorship. Thanks to that deflation, we can increasingly count on authors who care little about the lucre of copyright - blockheads, as Samuel Johnson called them - to supply us with original expressive works. This paper describes the economic push and pull between distributed infringement and distributed authorship - between copyism and blockhead-created content, we might say - and how copyright policy should mediate those forces.

This free-standing article comes largely from various parts of chapters 1, 8, and 9 of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. As always, I welcome your comments.

[Posted at Intellectual Privilege, Agoraphilia, and The Technology Liberation Front.]

In the News: Guy Likes to Surf

Tom W. Bell — Thu, 21 Feb 2008 10:22:00 +0000

To my surprise, the O.C. Register ran a twee report about how I used surfing to motivate my sabbatical book project. The reporter, Marla Jo Fisher, evidently read my blog post on the topic, and figured that it would make a cute "slice of life" sort of story. She and the photographer, Leonard Ortiz, did a fine job of not making me look like any more of a fool than I am—no mean feat, that. Nice folks, too.

[Crossposted to Agoraphilia.]

Folding Heart Card, Uncopyrighted

Tom W. Bell — Thu, 14 Feb 2008 20:49:00 +0000

[NB: Updated; please see concluding paragraphs.]

As a matter of policy, we should favor love. It generates many private and public benefits. Individuals or communities short of love suffer terribly. Those rich in it thrive.

Please allow me to offer one small step towards encouraging love: An uncopyrighted (and thus public domain) card. Folding it for your love will prove your devotion, as the folds present a nice little origami challenge. A personalized card beats a store-bought one by a mile, too. Add messages inside and out, lock the heart up, hand it over, and brace yourself for some lovin'.

Here are some details:

If I might geek out for a moment, I'd like to offer some pertinent observations about copyright law. That I've uncopyrighted Folding Heart Card by no means guarantees that those who copy it will escape all liability. I have placed in the public domain only mywork of authorship—the image and the folds portrayed above. Another might claim copyright privileges over the same work, or some part of it. I claim Folding Heart Card as an original, but I must also admit that, by definition, unconscious copying remains a risk. So while I encourage you to copy the work as you see fit, and thereby honor both my love and your own, you must assume full responsibility for the outcome. I think, on net, you'll like the results.

Update: On his eponymous, conspiratorial blog, Eugene Volokh kindly cited my Valentine's Day offering. That prompted a question about the copyrightability of origami creations--and another excuse for me to geek out.

Origami works probably merit copyright protection under U.S. law as works of sculpture, though the constraints imposed by paper-folding (there are only so many ways to fold a heart, for instance) might support a merger defense to any such claim. The sequence of folds required to make a particular origami work, in contrast, would probably fall outside the scope of copyright, instead qualifying as a "procedure, process, system, [or] method of operation," per § 102(b). A patent would better suit that subject matter. An illustration of a folding sequence, such as my photos showing how to make the Folding Heart Card, would of course enjoy copyright protection.

As long as I'm updating, I'll also caution those of you who create the Folding Heart Card that its front does not open. The back does open up, however, once you unlatch the paper locks that hold it closed. If you prefer a version that will not tempt the card's recipient to try to open the front, you can, by way of a minor variation on the technique I illustrated, close its face with a kimono fold. I leave the details of that method, which I rejected as unappealingly unsymmetrical, as an exercise for students of origami.

[Crossposted to Agoraphilia and The Technology Liberation Front.]

The Packet-Switched Society

Tom W. Bell — Fri, 08 Feb 2008 18:34:00 +0000

Two sharply contrasting views dominate the debate over copyright policy. On the one hand—the left one, we might say—copyrights represent mere policy tools, no better in principle than any other legal mechanism and, indeed, more modern, rationally planned, and democratically chosen that anything the common law can offer. On the other hand—the right hand, we might say—copyrights represent property rights no less than real estate or moveable goods do. On that view, copyrights deserve strict enforcement and our solemn respect.

[My draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good, presents] copyright policy on a third hand. So grasped, copyright represents nothing better than a clumsy attempt to correct an alleged market failure. Common law rights, implemented by technological advances, social networks, and growing wealth, increasingly suffice to stimulate the production of original expressive works. Increasingly, we find that we do not need copyright. To that extent, it does us little good and much harm to remain imprisoned within the confines of the Copyright Act. Even if they wanted to, federal lawmakers could not put copyright policy into a delicate balance; they face powerful incentives to not even try. Better we should cast aside copyright's statutory privileges and rely on the common law to promote the public good.

Many people—well-informed, intelligent, and sincere people—will doubtless disagree with this third view of copyright policy. Many will have good reasons for doing so, too. Some, though, will have perhaps been mislead by their reliance on an older, less flexible understanding of copyright—what we might call a circuit-switched model. In fact, however, we can best understand copyright policy, and much else, by following the example set by packet-switched networks.

As courts and commentators traditionally describe copyright, it arises through the collective deliberation of central authorities who, after a delicate balancing of competing interests and in the name of the general welfare, create statutory rights to expressive works. In that model, lawmakers let copyright holders borrow the State's power to violate natural and common law rights, empowering copyright holders to control others' pens, presses, and voices. That approach strongly recalls the policy model applied to earthbound, closed, circuit-switched networks.

Those who build circuit-switched networks invoke the State's power of eminent domain to justify violating common law rights, laying wires that cut across private property. Regulators supervise the monopoly that results, imposing common carrier obligations, cross-subsidizing universal service, and controlling rates. So, too, goes the circuit-switched model of copyright: The Act empowers copyright holders to violate the common law, granting them statutory privileges that cut across customary rights, while lawmakers carefully calibrate the ebb and flow of expressions to maximize the general welfare.

This book takes a fundamentally different approach to public policy, an approach inspired by packet-switched networks like the market, person-to-person communications, and the internet. In such a network, message-bearing packets flow from point to point over any of many different paths, routed not according to the dictates of a central command but rather by generally accepted protocols. So long as a packet follows a few, simple rules, it can take any route it likes. Packet switching has many virtues; it often proves more flexible, robust, and scalable than circuit switching, for instance. It supports layer upon layer of complexity, too, encouraging a wealth of unplanned order. Most importantly for present purposes, packet switched networks offer us an apt model for understanding that vast web of consent-rich relations we call the liberal society.

Each of us a liberal society pursues a variety of goals, some shared and some unique. Each of us follows his, her, or (in the case legal persons) its own route through a network of voluntary ties. No central authority directs how we pursue our goals. Nor could it, given the complexity of the system and the distribution of information. Our packet-switched society instead relies on a few simple rules--based in natural rights and implemented through the common law--to define a protocol universally just and locally fair. Our society spontaneously generates peace and prosperity, the fruit of conscious action but not of conscious design.

As wire-bound parts of the internet demonstrate, a packet-switched network sometimes runs on a circuit-switched infrastructure. Similarly, liberal societies typically rely on some measure of State intervention to help patch the gaps where private means fail. But in neither case should we confuse an old fix for a necessary feature. Thanks to open-access and packet-switched radio communications, the Internet can—and probably should—escape from those circuit-switched bottlenecks so susceptible to disruption and censorship.

Similarly, common law now stands ready to finally cure the market failure that alone justifies copyright's statutory privileges. If thus rendered superfluous, the Copyright Act will turn from a necessary evil into simply an evil. We should not let that political kludge trap us within copyright's confines. Let us instead seek the common good in the common law.

[NB: The above text comes from the conclusion of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. You can find a PDF of the entire chapter, including footnotes, here. I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

Copyrights as Positive Natural Rights

Tom W. Bell — Thu, 17 Jan 2008 16:19:00 +0000

[I earlier explained why copyrights do not qualify as natural rights under Locke's theory of property. Here, I explain why the same holds true under Barnett's positivist account of natural rights. Both passages come from my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good.]

Randy E. Barnett justifies natural rights conditionally, basing them on our appreciation of certain social goods. He emphasizes that "if we want a society in which persons can survive and pursue happiness, peace and prosperity, then we should respect the liberal conception of justice—as defined by natural rights—and the rule of law." Not everyone values freedom, harmony, and wealth, of course. Most of us do, though, and together we easily number enough to enjoy the comforts and pleasures of human society.

We live together amicably because we recognize and respect certain natural rights. Which ones? Barnett names private property—including our property rights in our bodies—and freedom of contract. Since property protects both the right to it and the right against trespass, it corresponds to common law's property and tort rules. Freedom of contract, which includes the right to contract and to not contract, corresponds to common law's contract rules. Barnett's description of natural rights thus matches the protections of persons, property, and promises at the heart of common law.

Barnett expressly includes "physical resources" in his description of property rights. "Such property rights are 'natural' insofar as, given the nature of human begins and the world in which they live, they are essential for persons living in society with others to pursue happiness, peace, and prosperity." Do copyright rights qualify as natural on that description? Probably not.

Barnett offers a positivist account of natural rights, an approach earlier developed by F.A. Hayek. Social values evolve and develop to enable human flourishing, Hayek explained. "[G]roups which happen to have adopted rules conducive to a more effective order of actions will tend to prevail over other groups with a less effective order," he said. That hardly means that groups with especially efficient rules conquer and crush their less developed neighbors. "It is more likely that the success of the group will attract members of others which then become incorporated in the first."

That competition between social orders spontaneously generated natural rights long before states arose. "Long before man had developed language to the point where it enabled him to issue general commands, and individual would be accepted as a member of a group only so long as he conformed to its rules," Hayek explained. David Hume expressed the same point with characteristic grace:

But tho' it be possible for men to maintain a small uncultivated society without government, `tis impossible they shou'd maintain a society of any kind without justice, and the observance of those three fundamental laws concerning the stability of possession, its translation by consent, and the performance of promises. These are, therefore, antecedent to government, and are suppos'd to impose an obligation before the duty of allegiance to civil magistrates has once been thought of.

Our rights to persons, property, and promises qualify as "natural" because they have evolved to enable human social life. They long predate the State. Copyright, in contrast, arose only relatively recently, in complete reliance on a non-customary, exceptional, statutory privilege.

[NB: The above text comes from chapter 2, § C.2 of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. You can find a PDF of the entire chapter, including footnotes, here. I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

How Surfing Saved My Sabbatical

Tom W. Bell — Wed, 09 Jan 2008 04:50:00 +0000

What motivates tenured law professors to write? I suppose that some do so as second nature, as automatically as lesser scholars breath. Perhaps other law profs write out of a heroic sense of duty, confident that what they publish will change the world for the better. It takes more than that to get me to write, alas. It seems that my inner 14-year-old, still going strong despite decades of scolding, won't settle down and let me write unless I resort to embarrassingly juvenile carrots and sticks.

Sometimes I bribe myself with a new toy for getting my writing done. Last spring, for instance, I gave myself a a new Breedlove guitar for meeting the deadline on an article I'd promised to the Utah Law Review. That deal worked out nicely (or, as my inner punk would say, "Saaaaaweet!").

My auto-goading strategy faced a more difficult challenge this fall, however, when I prepared to knuckle down and write a book during my one-semester sabbatical. I realized early on that I could not afford (read, "am too cheap to buy") all the cool stuff that it would take to stimulate the requisite labor. And, anyhow, a guy can use only so many surfboards, skateboards, and snowboards (though a great many more than you might at first think). How, then, would I motivate myself?

As so often happens in life, surfing held the answer.

On most work days during my sabbatical, I would head first thing in the morning to my "beach office": a rugged picnic table, hidden in a grove of laurel sumac, on a bluff above one of my favorite breaks. After briefly salivating over the waves, I'd crack open my laptop and get to work on a pre-assigned task. Some days I'd aim to write a new chapter section, for instance, while on others I might have to create new set of illustrations. It helped that my beach office lacks internet access; email and blogs could thus offer no distractions. The real motivation came in this, though: I could not go surfing unless and until I finished the day's assignment.

As my family can attest, I stuck to my bargain. Several days I dragged in late, long-faced and bone-dry because I had not met my daily goal. Things got especially rough after my computer's hard-drive crashed, forcing me to recreate data and write some passages in long-hand. Happily, though, I got to cap off many days at my beach office with some well-earned waves.

It may sound like a ridiculous arrangement to you, but the results satisfied me. I got my book, Intellectual Privilege: Copyright, Common Law, and the Common Good, into late draft. (It remains only for me to re-read the whole thing, polish it as necessary, and write the conclusion). That effort has already spun off one paper; a couple more will follow. Perhaps surfing did not help to motivate the other stuff I did during my sabbatical—presenting papers and attending conferences—but it didn't seem to hurt. As a nice side-effect, my surfing improved a lot, too; towards the end of my sabbatical I managed a few fin-forward take-offs and spins on my 9'0" longboard (sort of like Sensei Nuuhiwa's example, but without the iffy neighbor and with a lot more falling down), and I've started feeling pretty comfortable on my newer board, a 6'10" French "Soul Fish."

In other ways, granted, my sabbatical fell short of my goals. I had hoped to drywall the garage and record a few songs, but did next to nothing on either project. The oil painting that I planned—something like this earlier one—remains for now only roughed-in. I console myself that I at least managed to install a new irrigation line and several area drains. And, anyhow, who really cares if that work—productive play, really—remains undone? The good folks at Chapman who funded my sabbatical didn't ask me to rebuild my house, after all. With luck, though, they will like what I did get done, and continue to support my scholarship. The Channel Islands 7' M13 I put on special order should come sometime late this coming spring, you see, and I expect it will take a lot of study to master it.

[Crossposted to Agoraphilia and MoneyLaw.]

The Common Law from Satellite

Tom W. Bell — Sat, 05 Jan 2008 00:07:00 +0000

[My forthcoming book spends a lot of time contrasting copyright with the common law. I thus thought that I should say at least a little about what I mean by the latter.]

[C]ommon law originates in custom, wins recognition in courts, and develops in commentary. Custom naturally comes first. It long ago gave rise to a set of social practices, such as avoiding bloodshed, honoring borders, and upholding oaths, that permit us to live in peace and prosperity. Referring to those and other customs helps common law courts to resolve our disputes justly. A judge might for instance determine reasonable conduct in a tort case by looking to community standards, award legal rights to someone who has long and openly used property entitled to another, or interpret a contract's language by light of trade usage. In these and other ways custom inspires—if not mandates—the common law. Commentators, looking back over many court decisions and across many years, help us to follow the common law's meandering path, explaining and rationalizing its wanderings. The common law thus develops from custom, through courts, and to commentary. [The below figure] illustrates.

[The above figure] traces the common law's origins from unarticulated customary practices, found in actions but not words, through the powerful speech of courts administering justice, to purely verbal commentaries on the law. Up to a point, then, the common law grows upward towards increasing abstraction over time; hence the initial upward cast of the arrows of influence laid out in [the above figure]. The forces driving the common law's development flow downward, too, though, toward more concrete results. Legal commentary sometimes persuades a judge, balanced on the cusp between two plausible claims, to choose one over another. Legal decisions sometimes affect customary practices, as when courts clarify that no person can own another. The threads of custom, court, and commentary thus intertwine, weaving over time the tapestry of common law. That offers a somewhat idealized picture, granted, and one far removed from the nitty gritty of real world litigation. What [the above figure's] satellite view of the common law lacks in detail, however, it makes up for in comprehension.

At its most basic and elegant, the common law comprises just a few, simple rules. "Aggress only in self-defense, do not trespass, and keep your word," it directs. Even more succinct: "Respect persons, property, and promises." We find it convenient and useful to follow those rules. They seem natural to us. They should; they evolved alongside us in the long journey from tribes, through kingdoms, and to states. They will doubtless continue to follow, and indeed promote, our social progress.

Rather than simply inventing it out of whole cloth, courts have helped to develop the common law by deciding how customary rules apply to particular disputes. In their collective wisdom, over hundreds of years, judges and commentators in Britain, the United States, and other common law countries have refined the principles of tort, property, and contract law. They have bequeathed to us a detailed set of time-tested and mutually compatible rules, well chosen to safeguard our peace and prosperity.

Nobody planned that happy outcome. The common law instead evolved spontaneously, developed over the ages and tested in countless conflicts, to protect our persons, property, and promises. Tort law, property law, and contract law do the heavy lifting. Beyond that, the core of common law, lies a variety of supporting sub-orders. We can fairly describe the rules of wills, trusts, and estates as a specialized part of the common law, for instance. Ditto the common law rules of agency and restitution. We find these, the rules of common law, initially in customary practices and then later in courts' decisions. Commentators, in treatises and restatements of the law, summarize, clarify, and systematize the common law's rules. By diligently studying those various sources we might discover the tort, property, contract, and other rules that together make up the common law. Notably, that effort will not lead us to copyright.

[NB: The above text comes from chapter 1, § II of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. You can find a PDF of the entire chapter, including footnotes, here. I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

Copyright, Mapped

Tom W. Bell — Thu, 03 Jan 2008 04:47:00 +0000

All copyrighted works originate as ideas, born when authors choose how to express themselves. The slightest exercise of discretion will suffice; just about anything more original than an alphabetical listing of names can qualify for copyright protection. Once having crossed that low hurdle, it remains only for an author to fix her expression in a tangible medium for more than a transitory duration. She must, in other words, record her authorship. After thereby fixing her work—in words, music, pictures, computer code, architecture, or almost any expressive medium—she enjoys the rights afforded by the federal Copyright Act. Copyright thus inheres both in doodles and multi-million dollar movies, in works ranging in creativity from formulaic news blurbs to unprecedented paintings.

Those, copyright's fundamental features, mark it as a distinct legal entity. Though laypeople often confuse copyrights with patents, trademarks, and other intangible goods, each of those related types of IP corresponds to a unique combination of subject matter and supporting law. [The figure below] illustrates how copyright relates to, and differs from, its nearest legal next-of-kin.

Rather than the points of a compass, [this figure] charts several legal dimensions. The left vertical scale divides IP into two fundamentally different categories. IP above the horizontal divide, such a trademark, has value only insofar as it helps to identify other things of value. Below the divide, in contrast, falls intrinsically valuable subject matter. Ask yourself which type of IP you would want on a desert island; those you would choose fall into “valuable per se” territory. The right vertical scale shows the source of a legal protection. Towards the middle lies state common law, farther out lies state statutory law, and at the extremes lie federal statutory law. Unfair competition straddles all three categories, for instance, whereas copyright depends entirely on federal statutory law. The bottom horizontal scale indicates to what degree a particular kind of IP protects expressive or functional subject matter. Copyright stretches from poems to computer programs, for instance, whereas trade secret covers only commercially useful ideas.

The arrows on the map indicate how rights develop over time. Each sort of IP begins as an idea. From there, different types of IP move in different directions, depending on their subject matter. As a general matter, as the arrows move away from the center of the map, rights grow: more developmentally mature; more powerful; harder to obtain (because the requirements for protection become more stringent and formal); and more public and federal. Copyrights, however, moves relatively quickly and easily from mere ideas to full federal protection.

Figure [[cite]] shows two possible precursors to copyright: common law's protection of literary property or state 's statutory protection of unfixed expressive works. The former legal right expired as of January 1, 1978, when the Copyright Act preempted it, and appears here solely as a historical marker. The latter legal right has won general recognition in California, which offers copyright-like protection to unfixed works of authorship, and narrower protection in New York, which has enacted criminal sanctions on fixing a public performance without permission and with the intention of profiting therefrom. In most cases, therefore, ideas now speed directly to copyright protection without making any intermediary legal stops.

Notably, [the figure above] does not include what some courts and commentators have called "common law copyright." As the Supreme Court established long ago, no such thing exists. The common law's protection of expressive works traditionally applied only to unpublished works; it did not give authors anything like copyright's exclusive publication rights. [The above figure] thus eschews "common law copyright" as a misleading label.

The protean nature of the common law admits other interpretations of its scope, granted. New York courts have in recent years created—"recognized" would overstate the case, given that the courts did not claim to uphold any customary practice—a common law right against the unauthorized duplication of publicly-distributed sound recordings made prior to February 15, 1972, the date on which federal copyright protection first extended to such works. The decisions of only one state's courts hardly suffice to define the common law, however, especially when all other states to consider the question have reached a contrary conclusion. It remains a bit cloudy whether the common law's protection of literary property extends to unfixed works, too; several courts have denied that it does while some courts have hinted at a broader right. Here as generally, it seems wisest to attribute to the common law only those rules that have won express and wide approval.

[NB: The above text comes from chapter 1, § B of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. I will soon upload a PDF of the entire chapter, including footnotes. I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

Copyright's Path

Tom W. Bell — Thu, 27 Dec 2007 06:01:00 +0000

Works of authorship originate in private, safely kept under common law protections. Once published, however, expressive works become data ferae naturae—wild and natural information. As such, expressive works roam and reproduce freely. They may get captured in fixed copies, caged in atoms or bits. But the public, once it has absorbed an expressive work, generally retains relatively cheap access to it—unless and until copyright intervenes.

Copyright law limits public access to expressive works, herding them off the commons and into private hands. The Copyright Act offers a sort of ranch to authors, giving them a place to birth, raise, and sell their expressive works safe from the deprivations of grasping strangers. Authors enjoy those special privileges against the public not as a natural right, but rather solely thanks to a policy authorized by the U.S. Constitution and implemented through the Copyright Act. [The figure below] illustrates the path that copyright, together with some of its legal next-of-kin, takes from its origins towards its goals.

Expressive works begin as toll goods, excludable but non-rivalrous in consumption. In other words, an author can at first keep others from consuming her expressions thanks merely to her common law tort, property, and contract rights. She can keep her works in private, under lock and key, releasing them only upon solemn promises of secrecy. Those with whom she shares her work can enjoy it without at all decreasing her enjoyment of the same work; she can sing her song or study her painting just as well if others listen to or gaze on their own copies. That marks her work, like other works of authorship, as non-rivalrous in consumption. It retains that characteristic if and when she publishes the work, but then loses its excludability. Unless she were to somehow form and enforce a contract with everyone who encounters her published work—an unlikely prospect—only through copyright law could she protect her work from unauthorized access. Copyright steers published works back into toll good territory, empowering authors to assess fees and impose other limits on those who would use their works.

The Copyright Act's privileges, because they restrict non-authors from freely copying a copyrighted work, defy natural and common law rights. That statutory negation of erstwhile public goods, however, arguably serves the public good. Though copyright restricts access to existing works of authorship, it encourages new ones.

[NB: The above text comes from chapter 1, § A of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. I will soon upload a PDF of the entire chapter, including footnotes. I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

Discouraging Just Enough Infringement

Tom W. Bell — Wed, 26 Dec 2007 03:33:00 +0000

While rightly shuddering at specter of copyism, we should also recognize that the unauthorized use of copyrighted works can, if it does not go so far as to undercut authors' incentives, increase social wealth. Consider, for instance, an impoverished entrepreneur relying on pirated software to start her business. Supposing that she could not afford to buy an authorized copy, and that her unauthorized use would not depress software production, her infringement would generate a welcome consumer surplus. The same would hold true of, say, someone who enjoys an infringing copy of a CD despite being unwilling to pay its retail price. As [the figure below] illustrates, those exceptions to the strict enforcement of copyright law could in theory benefit us all without discouraging the production and distribution of expressive works.

[The above figure] surely offers too sanguine a view of the effects of copyright infringement, however. Without the limitations imposed by copyright law, some consumers who would otherwise willingly pay for authorized uses might instead opt to save their money by joining the unpaying masses of unauthorized users. The resulting exodus, from respecting copyright to infringing it, would risk decreasing the revenues afforded by copyright, bringing about the policy tragedy portrayed [earlier].

How does copyright law dispel that, the specter of copyism? By imposing high marginal costs on infringing uses of protected works. Absent the Copyright Act, and especially in digital works, an infringer would generally face the same low marginal reproduction costs as a copyright holder. Thanks to the Copyright Act, an infringer might have to pay actual or statutory damages, lost profits, costs, and/or attorney's fees to a copyright holder for every unauthorized use.

How high should lawmakers set the marginal costs of infringement? We wouldn't want them to under-deter it, lest the specter of copyism become all too real. Nor would we want them to overdo it, given that a modest level of infringement can deliver social gains. Theory suggests that lawmakers should set the marginal costs of infringement, taking into account that only some infringing uses get caught and litigated, just high enough to ensure that authorized users will have no incentive to opt for paying less than enough to sustain authorship. [The figure below] illustrates.

So, at least, goes copyright in theory. In practice, as discussed in chapter 4, lawmakers lack both the information and incentives to calibrate copyright policy so precisely. These economic models thus only explain how copyright law should work—not how it does work.

[NB: The above text comes from chapter 1, § C.3 of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. I will soon upload a PDF of the entire chapter, including footnotes. I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

The Specter of Copyism

Tom W. Bell — Mon, 24 Dec 2007 21:38:00 +0000

On the standard economic view of copyrights, as on the economic view of other monopolies, average revenue equals demand. Those two measures trace one and the same line. Why? Because for most products and services, consumption closely matches supply at the market-clearing price. Sales reveal consumer demand and, in the case of copyright and other supposed monopolies, only one seller reaps revenue from those sales. Thus, for instance, might a utility's sales show the aggregate consumer demand for electric power.

Even a so-called monopolist might face competition, however. The sole authorized seller of hard liquor might fail to capture the entire market of drinkers, for instance, losing some to the resale of stolen goods and others to moonshine. So, too, might an electrical utility suffer theft, competition from home-brewed power, and exit to gas appliances.

The caveats to "monopoly" prove especially strong in the case of copyright, which permits some unauthorized uses of protected works, such as fair uses, and fails to prevent many infringing uses. We might fairly say that the former category of uses, because copyright holders have no statutory power to bar them, do not really cut into the market share for a copyrighted work. Copyright holders cannot lose what never have, on that view. I here thus focus on infringing uses. Still, though, it bears noting that, whether due to permitted or forbidden uses, a copyright holder never commands all of the market for an expressive work.

That conflict between theory and facts shows why we should perhaps eschew speaking of "the copyright monopoly" and instead talk about copyright in terms of market power. Whether or not it hands out monopolies, after all, the Copyright Act does give a powerful subsidy to those it protects: the privilege of invoking State power to inhibit infringing uses of expressive works. The standard economic model of copyright usefully captures that effect, but somewhat exaggerates it. We can get a more accurate picture of copyright by splitting consumer demand from average revenue.

The consumption of an expressive work—and thus the revealed demand for it—may greatly exceed the supply legally permitted under copyright law. Effectively, some consumers treat copyrighted works like public goods, paying only very low marginal costs of reproduction. That payment typically comes not in cash but in the opportunity costs, in terms of time and effort, of copying. At all events, none of it goes to copyright holders, leaving them aggrieved and, sometimes, litigious. But copyright holders seldom find it worthwhile, or even possible, to fully defend their rights under the Act. Many infringing acts go undetected or for other reasons elude enforcement. [The figure below] illustrates that phenomenon, showing how in the case of a copyrighted work aggregate consumer demand might diverge from the copyright holder's average revenue.

Copyright holders understandably object when, due to infringement, they earn less revenue than the law entitles them to. But why should the rest of us care? Recall that copyright aims to cure a looming market failure: we will suffer an undersupply of expressive works if authors cannot recoup their production costs. Copyright aims to cure that failure by giving authors the privilege of controlling, and thus profiting from, certain uses of their works. Infringement threatens to upset that statutory mechanism, depriving authors and their transferees the revenues necessary to stimulate the production and distribution of expressive works.

We might call that threat, after Marx and Engels, "the specter of copyism." And, as the allusion to communism suggests, we should all worry that poverty will follow if production does not pay. In the case of copyright policy, in other words, we should worry that infringement will decrease copyright holders' revenues below the level necessary to sustain authorship. As [the figure below] illustrates, that threatens to deny the market new expressive works.

[NB: The above text comes from chapter 1, § C.2 of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. I will soon upload a PDF of the entire chapter, including footnotes. I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

The Standard Economic Model of Copyright

Tom W. Bell — Sun, 23 Dec 2007 19:37:00 +0000

Creating a work can cost authors a lot, whereas copying a work costs others very little. Absent copyright, then, authors might find it discouragingly difficult to recoup the costs of creating fixed expressive works. Authors might then underproduce expressive works, and the public consequently suffer.

To avoid that policy tragedy, the Copyright Act empowers authors to control the reuse of their fixed expressive works. By selling those special statutory privileges, authors can offset their production costs. Thus does copyright arguably do what the common law allegedly cannot: ensure that the public enjoys an adequate supply of expressive works.

The benefits of copyright policy come at a price, however. Although it may cost a great deal to make the first copy of a fixed expression, it usually costs very little to make and distribute subsequent copies. Absent copyright protection, those works would constitute public goods. Copyright bars the public from freely enjoying the very goods labeled "public." Instead, the Act vests copyright holders with the power to charge whatever the market will bear to escape liability for infringement. Though the monopoly rents that copyright holders thereby win allegedly provide a necessary stimulus to creativity, non-holders suffer the opportunity costs of losing cheap access to fixed expressive works. Most commentators thus understand copyright policy to aim at striking a balance between giving authors sufficient incentives to create expressive works and providing the public with adequate access to the works thereby created. [The figure below] illustrates that, the standard economic model of copyright policy.

As portrayed in [the above] figure [], an author incurs large costs upon creating a fixed work but very low marginal costs of production (MC) thereafter. The author's average costs of production (AC) thus drop with each additional copy she—or, more likely, the party to whom she sells her copyrighted work—produces. She faces the usual sort of downward-sloping aggregate demand curve (D), which also marks the average revenue (AR) she can make by selling any given number of copies. How many should copies should she sell? Were social efficiency the test, she would sell the quantity (Qe) corresponding to the point where her marginal cost curve crosses the demand curve, earning the corresponding price (Pe). But that would discourage her (and other would-be authors) from creating fixed expressive works, as it would not allow her to recover her average costs. For her to break even in the authorship business, she would need to sell at least the quantity (Qs) corresponding to the point where her average cost curve crosses the demand curve, thereby earning a sustaining price (Ps). Happily for her, though, the monopoly privilege afforded by copyright law allows her, at least in theory, to sell even fewer copies, and at a higher price (Pm). Specifically, she will want to sell a quantity (Qm) that corresponds to the point where her marginal revenue (MR) curve crosses her marginal cost curve. At higher quantities than that, her marginal costs would exceed her marginal revenues, giving her marginal losses. If our hypothetical author manages to sell at the monopoly quantity and price that maximizes her benefits, she will earn profits (OP) equal to the amount her revenue exceeds the amount necessary to recoup her average costs. In that event, consumers to whom she sells will enjoy a surplus (CS) representing the different between what they pay and how much they value her work. Non-holders unwilling to pay what she demands, however, will suffer opportunity costs (NO) equal to how much they would have paid for the uses barred by her assertion of copyright.

We could doubtless say more about that, the standard economic model of copyright, adding complications, quibbles, and criticisms. I will, below, in explaining why we stand a good chance of outgrowing copyright. For now, though, let us assume that [the above] figure [] offers a conventional and useful economic model of copyright.

[NB: The above text comes from chapter 1, § C.1 of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. I will soon upload a PDF of the entire chapter, including footnotes. I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

Locke on Copyright

Tom W. Bell — Thu, 20 Dec 2007 18:40:00 +0000

Some commentators have defended copyrights as natural rights under Locke's labor-desert theory of property. On that view, copyright qualifies as a natural right for the same reason that tangible property does: Because an author mixes herself, through her creative effort, in her expressions. Ayn Rand, Herbert Spencer, and Lysander Spooner represent prominent proponents of that justification of copyright.

That facially plausible extension of Locke's theory does not, however, withstand close scrutiny. His labor-desert justification of property gives an author clear title only to the particular tangible copy in which she fixes her expression--not to some intangible plat in the noumenal realm of ideas. Locke himself did not try to justify intangible property. He appears, in fact, to have viewed copyright as merely a policy tool for promoting the public good. Modern commentators who would venture so far beyond the boundaries of Locke's thought and into the abstractions of intellectual property thus ought to leave his name behind.

More pointedly, copyright contradicts Locke's justification of property. He described legislation authorizing the Stationers' Company monopoly on printing—the nearest thing to a Copyright Act in his day—as a "manifest . . . invasion of the trade, liberty, and property of the subject." Even today, by invoking government power a copyright holder can impose prior restraint, fines, imprisonment, and confiscation on those engaged in peaceful expression and the quiet enjoyment of physical property. By thus gagging our voices, tying our hands, and demolishing our presses, copyright law violates the very rights that Locke defended.

Of all the theories of natural rights reviewed [in this chapter], Locke's probably has the greatest likelihood of influencing present-day law. For all that, though, it runs little risk of convincing contemporary lawmakers or courts to forsake the prevailing, instrumentalist view of copyright. The Lockean labor-desert theory has only one viable road to practical and present influence—via original meaning. Many judges find appeals to the original meaning of constitutional language, such as that embodied in the copyright clause, quite persuasive. As our careful review of the historical record showed [earlier in the chapter], however, the Founders almost certainly did not regard copyright as a natural right.

[NB: The above text comes from chapter 2, § C.1 of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. You can find a PDF of the entire chapter, including footnotes, here. I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

Copyright Infringement More Tax Evasion than Speeding

Tom W. Bell — Mon, 17 Dec 2007 22:19:00 +0000

I earlier analogized copyright infringement to exceeding the speed limit. On reflection, though, I think that understates the case against infringement, and that it more resembles tax evasion than it does speeding. That far from establishes copyright as a natural right. To the contrary, it establishes it as a welfare right, granted by the State, based on the redistribution of wealth, and enjoyed by authors at our expense. Here is how I put it now, in a revised version of what I posted earlier:

When you infringe a copyright, you can admit to breaking the law without also admitting to violating a natural right. Thus does a good driver on an empty road speed with a clear conscience.

So, too, might a citizen drive dangerously close to the Tax Code's limits. To misjudge, and blunder into tax evasion, could lead to loss of liberty and property. Citizens thus obey the Tax Code for good reason. Voluntary payment of excess taxes remains very rare, however; most people evidently pay their taxes under compulsion rather than out of joy. In that, the Tax Code resembles the Copyright Act. Both rely on positive legislation; both create regulatory regimes; both redistribute property (money in the one case, rights to throats, pens, and presses in the other). We grudgingly accept that the Tax Code and the Copyright Act create special beneficiaries of State power, the former by way of tax credits, the latter by way of exclusive rights. We might even celebrate it, reasoning that both the poor and authors merit our generosity. But we do not speak of a natural right to welfare. Nor should we speak of a natural right to copyright.

None of that goes to show that we should infringe copyrights. Speaking only for myself, I try to respect them. I probably misjudge, sometimes, I admit. Copyright contains many subtleties, even to an avowed geek, and its application often relies on contestable facts. We often don't know what constitutes infringement unless and until a judge tells us. It doesn't matter to copyright law if I do not bow deeply enough to its commands, of course. I—like you and everyone else subject to the Copyright Act—am held strictly liable for my infringing acts.

Still, I try to respect copyright law. It does not unduly burden me, I find, and I have a profound appreciation of good authorship. I do not think that copyright's beneficiaries have any natural right to my obedience, however; nor do I think that, say, Medicare's beneficiaries have any natural right to my tax payments. But I think that authors, like the poor, merit our concern and material aid. Government programs somewhat promote that aim. They operate with dismaying inefficiency, however, and often with outrageous unfairness. Thus did the U.S. federal government recently enact welfare reform. Thus, too, should we reform authors' welfare: copyright.

You probably try to heed copyright law, too. Most people do. Why? We recognize copying limits, like speed limits and tax codes, as legislation designed to maximize social utility, created by statute for presumptively good reasons and thus, unless manifestly inefficient or inequitable, enjoying some claim to our obedience. We follow such laws out of patriotism, unreflective habit, grudging acceptance, or fear—but not because they protect natural rights.

So, to judge from actions, go the moral intuitions of most folks. We regard violations of persons, property, and promises as serious matters, dire deviations from acceptable social behavior. We regard casual copyright infringement, in contrast, as little worse than driving 80 m.p.h. in a 65 m.p.h. zone, or exaggerating the value of a charitable donation.

[NB: The above text comes from chapter 1.5, § C.3 of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. Please note that I will soon renumber it "Chapter 2," and adjust all subsequent chapters accordingly. You can find a PDF of the entire chapter, including footnotes, here. As always, I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

The Morality of Unauthorized Copying

Tom W. Bell — Sat, 15 Dec 2007 16:49:00 +0000

To say that copyright does not protect any natural right is not to say that it lacks any moral justification. We naturally frown on unauthorized and misattributed copying. A singer who claims authorship of a song written by another commits a sort of fraud on his listeners. Most of the time, that sort of fraud does not rise to the level of materiality, and thus does not justify litigation. We typically do not rely to any substantial detriment on the accuracy of an expressive work's description, after all. If we like a work, we like it, regardless of its source. Misdescriptions of authorship can trick us into buying the wrong expressions, however. You might, for instance, buy tickets to a Djelimady Tounkara concert only to find another, lesser guitarist on stage. That would naturally rouse your indignation.

We don't need copyrights to vindicate that sort of wrong, however; common law and various state and federal statutes already afford many remedies for it. Consumers of misleadingly labeled goods or services can plead fraud under tort law and breach or promissory estoppel under contract law. The licensee of a materially misdescribed work would enjoy a strong contract law defense, one voiding any agreement alleged by the licensor publisher. An author who sees her work sold under another's name would, as a wronged competitor, have standing to sue for unfair competition under state or federal law. The publisher of such an author might likewise enjoy legal and equitable remedies for passing off. The Federal Trade Commission and its many state counterparts can protect consumers and competitors of falsely labeled expressive works, while various federal and state executive officers can fight such wrongs with the criminal sanctions levied against the many guises of fraud.

Those legal tools give us ample ways to discourage materially harmful misdescriptions of expressive works. We don't need copyright to satisfy our moral intuitions on that front, and most people's condemnations against unauthorized copying don't go much beyond harmful lying. If you make an unauthorized copy of a CD and give it as a gift to your friend, for instance, do you feel guilty of committing a moral wrong? Probably not—even though you would probably thereby have committed copyright infringement. You can admit to breaking the law in such a case without admitting to violating a natural right. Thus does a good driver on an empty road speed with a clear conscience. We recognize copying limits, like speed limits, as legislation designed to maximize social utility, created by statute for presumptively good reasons and thus, unless manifestly inefficient or inequitable, enjoying some claim to our obedience. We follow such laws out of habit, conformism, or fear—not because they protect natural rights.

So go the moral intuitions of most folks. Authors, admittedly, sometimes express profound outrage that unauthorized copying, even when it gives credit where due, equates to theft. Their understandable pique does not, however, establish a natural copyright right. The non-rivalrousness of expressive works means that copying does not hinder the use or enjoyment of anyone's copy. A painter fully owns his canvas even if another photographs it without his permission, for instance. What authors care about in such instances is not the use and enjoyment of their works, but rather their lost copyright revenues.

Copyright can provide authors with revenue, a benefit that infringement threatens to reduce. Authors thus naturally feel disappointment and anger when their works suffer unauthorized use. But that hardly shows that copyright infringement violates a natural right. It only shows that authors, like almost everyone else, prefer more money to less. There can be no copyright infringement absent copyright protection. Only by circular reasoning, then, can the complaint that infringement reduces authors' revenues justify copyright.

[NB: The above text comes from chapter 1.5, § C.3 of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. Please note that I will soon renumber it "Chapter 2," and adjust all subsequent chapters accordingly. You can find a PDF of the entire chapter, including footnotes, here. As always, I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

Copyright Abandonment for Fun and Profit

Tom W. Bell — Fri, 07 Dec 2007 19:44:00 +0000

Why would copyright holders choose to abandon their statutory rights and rely solely on their common law ones? A few "blockheaded" authors might do so non-monetary reasons, of course. Thanks to the combined effect of copyright misuse and § 505 of the Copyright Act, however, even crassly profit-maximizing copyright holders might find abandonment financially attractive.

Under § 505, courts may in their discretion award attorney's fees to the prevailing party in copyright litigation. The Supreme Court has interpreted that provision to benefit copyright plaintiffs and defendants alike. The Court suggested that, among other factors, courts should base an award of attorney's fees under § 505 on "'frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.'" Those factors could easily describe a typical case of copyright misuse. Not surprisingly, then, courts have found that defendants who suffered copyright misuse—or even something less than misuse—deserve an award of attorney's fees under § 505.

Common law, like U.S. law generally, takes a very different approach to attorney's fees. Under the so-called "American Rule," each party in civil litigation—even the winner—must pay for its own legal representation. Section 505 of the Copyright Act represents a rare and notable exception to that rule.

Here, then, the common law treats authors better than copyright law does. The Copyright Act offers many benefits to copyright holders, of course, such as strict liability and statutory damages. Overzealous copyright holders might find that the doctrine of misuse denies those benefits, however, and that § 505 imposes the costs of paying for an opposing party's attorney. For some copyright holders, those combined effects might suffice to render abandonment a financially attractive option. That would hold especially true if copyright holders could count on their common law rights to survive abandonment and if entrepreneurs continue to develop private alternatives to the statutory protection of expressive works.

[NB: The above text comes from chapter 6, § D of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. You can find a PDF of the entire chapter, including footnotes, here. I cooked up this argument about the financial benefits of abandonment only recently, and am excited to have found a way—however small—in which common law offers authors better incentives than copyright law does. As always, I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

Copyright in 2027: A Letter from the Future

Tom W. Bell — Wed, 05 Dec 2007 13:28:00 +0000

Dear Reader,

Hello from 2027! The future has been going great. I really enjoy it, and I think you'll like it here, too.

Things have improved a lot since 2007. We've generally grown more healthy, wealthy, free, and (I daresay) happy. There remain rough spots, of course: Climate regulation, zombie flu, the still-unfinished meteorite prevention belt . . . and the future didn't work out too well for everyone. Some wonderful people didn't make it, sad to say, while others remain in suspension. As they say in aircar ads, "your mileage may vary. " All in all, though, the future remains very bright.

I remember back when I lived in 2007. I looked forward to the future, and foresaw pretty good stuff. That prediction turned out ok, but I have to admit that I missed a lot of details! Who would have guessed the 2015 Constitutional Convention? That one really caught me by surprise.

Back in your day, I used to think and write a lot about copyright policy. I fondly recall long hours at my "beach office"—a rugged old picnic table nestled in a grove of laurel sumac, high on a bluff above one of my favorite surf breaks. Looking back, I guess I had some pretty nutty ideas. None of the legislation I proposed in my book, Intellectual Privilege: Copyright, Common Law, and the Common Good, made it into law, for instance. (I can't say that surprised me, though.)

Copyright of a sort still exists, but it doesn't seem to matter as much as it used to. I still read about lawsuits getting filed, once and a while, but they almost always settle. Thanks to a decision from your era—eBay v. MercExchange—courts hardly ever issue copyright injunctions, anymore. In that case, the U.S. Supreme Court held that the same equitable standards generally applicable in civil cases apply likewise to patent infringement claims. Courts thereafter stopped enjoining patent infringement as a matter of course. Thanks to a logical extension of eBay, that same rule has long also applied to copyright infringement claims.

Pirates still face injunctions and stiff fines for fraudulently selling unauthorized copies as the real thing. The rest of us, though, largely ignore copyright. We have lots of access to expressive works, and we use them pretty much as we like. Granted, we sometimes buy early access to fresh works. A new book or song doesn't cost much, though. It has to compete, after all, with the vast amount of authorship each of can tap just by jacking into the Hive.

These days, our good old common law rights, joined with new technologies, "promote the general welfare" and "the progress of science and useful arts" (to quote version 1.0 of the U.S. Constitution). Property and tort law protect authors' voices, pens, and presses during the creation and distribution of expressive works. "Smart contracts" (something that Nick Szabo predicted in the 1990s), allow authors and publishers to exercise some control over what happens to publicly-distributed works.

Common law does not protect works of authorship perfectly, but it protects them well enough. New releases get decoded pretty quickly, and eventually fall out of privity and into the public domain. Most authors and publishers (in many cases, thanks to plummeting costs, the same party) thus release their works in as many open formats as they can. Recompense comes in the form of gifts and friends.

That might not sound like a very lucrative scheme, to you, but we have plenty (some say too many) of super-stars who earn (and usually waste) huge sums of money entertaining the masses. They owe some of their success to their ridiculous hair, granted, but even I like Spectacle's latest hit song. Even though they made a fair penny selling encrypted copies of it, they will make much, much more touring. I hear that they sold over 78,000 front row tickets to their google-res show in 3rd Life. With over 10 billion very wired people on Earth, and over 6 billion more in near space, it doesn't take a very big market share for an author to make very big profits.

But listen to me running on and on, like a doddering old fool! I'm sorry if I've bored you. It's been a while since I thought about copyright policy, and I've enjoyed reminiscing. I really should get back to my current project, though: Double-checking the latest ranking of governing services that A.U. News & Worlds Report publishes annually. (It puzzles me that the New Victorians didn't score higher. Just between you and me, I think that MosCorp might have under-reported its cross-jurisdiction restitution settlements.)

All in all, I think you will really like 2027. Of course, we have hard-working folks like you to thank for creating the wonderful world we now live in. Thank you very much for safeguarding the common law. The collective wisdom of its time-tested rules continues to serve us well. By defending your rights to person, property, and promise, you protected ours, too. Keep up the good work!

Looking forward to seeing you in the future,

Tom W. Bell

[NB: The above text comes from chapter 10 of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. You can find a PDF here. I wrote it following commentor Steve R.'s call for examples of how common law rights might protect expressive works. I welcome your comments, too.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

Deregulating Expressive Works

Tom W. Bell — Mon, 03 Dec 2007 08:18:00 +0000

Copyright law regulates expression. Through it, copyright holders win the privilege of invoking state power to control how and what we communicate. The Copyright Act limits our freedom to reproduce, rework, publicly distribute, publicly perform, or publicly display protected works of authorship. In many cases, even when the Act does not utterly prohibit an expression, the Copyright Office sets its price. Copyright flows top-down, out of Washington, D.C., in detailed and non-negotiable terms.

Common law operates on very different principles. It grows bottom up, out of the decisions of manifold state courts, without relying on federal lawmakers, statutes, or administrative agencies. It follows a few simple principles, leaving details to particular cases, customary practices, and mutual consent. Common law thus offers a deregulatory alternative to copyright.

Should we seize that opportunity? Simple logic suggests the appeal of winning the benefits of copyright policy (access to authors' works) without incurring its costs (lost opportunities to use those works). The Constitution goes further; it demands that we abandon copyright if we discover better policy options. If copyright is not necessary and proper to promote the general welfare and progress in the useful arts and sciences, after all, it loses its sole justification.

Common law alone evidently suffices to stimulate some original expressions, to some degree. Consider perfumes, recipes, clothes designs, furniture, car bodies, and uninhabited architectural structures—all of which exhibit great innovation despite falling outside the scope of copyright, patent, or any like statutory privilege. Perhaps common law could do still more if pressed into service more widely. Perhaps its fundamental principles of contract, property, and tort law could stimulate original expressive works even better than copyright can. Only by trying can we know.

We should thus promote policy experiments testing whether common law suffices to produce a socially optimal amount of expression. Copyright holders could help drive that discovery process by abandoning their statutory privileges. To encourage their participation, we should legislatively guarantee copyright holders that they will retain common law rights in works they dedicate to the public domain. That alone would probably not convince many copyright holders to abandon their statutory privileges, granted. Because it frees them from liability for opposing parties' attorneys' fees, however, abandonment already offers copyright holders a financial benefit. Clarifying that copyright abandonment leaves common law rights unaffected would strengthen that incentive.

Should we favor common law or a federal statute when it comes to controlling the creation, dissemination, and use of expressions? Commentators and courts largely agree on how to answer this question in First Amendment context. No such consensus exists in the context of copyright, however. Indeed, scarcely anyone even asks the question in those terms. We should not only ask it, but answer it: "favor common law over copyright."

[NB: The above text comes from part of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. Specifically, it comes from the introduction to Part II, Chapter 6. You can find a complete draft of the full chapter, together with footnotes, here [PDF]. Also, I recently uploaded a draft of Chapter 5, Codifying Misuse. I welcome your comments on either or both.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

Fair Use vs. Fared Use

Tom W. Bell — Tue, 27 Nov 2007 12:14:00 +0000

"Information wants to be free," claim those who decry the overpowering grasp of copyright law. But they cannot mean what they say. Information wants nothing at all. The epigram speaks not to what information wants, but rather to what people want: people want information for free.

So restated, the catch-phrase still rings true. Who would not prefer to get information--that increasingly vital good--at no cost? But, alas, information never comes for free. We can only account for its costs as fully as possible, try our best to minimize them, and allocate them fairly.

. . .

. . . Fair use is not free use. Users have to pay somehow, whether in lost opportunities or cash. Thanks to technological advances—digitalization, computers, and the internet—buying permission to use an expressive work often costs less than using it without permission. Thus has Apple's iTunes service flourished. As such fared use expands, fair use does and should give way.

Still, fair use will and should remain potent when a copyright holder entirely refuses to license access. Markets then do not simply fail; they fail to even exist. In such a case, fair use might well excuse the unpaid and unauthorized use of a copyrighted work. This holds especially true with regard to critical reviews, parodies, and investigative reporting.

What if copyright holders employ common law tools, such as licenses or automated rights management, to bar even the fair use of a work? In that case, we might well judge that copyright policy fails, on net, to promote the general welfare, the progress of science, or the useful arts. To remedy that wrong, however, we should not attack common law rights. If copyright and common law combine to give copyright holders too much power, we should trim back the former. As a special exception to common law, the Copyright Act remains, at best, no better than a necessary evil.

This chapter argues, in sum:

The scope of fair use will shrink as fared use grows, though objectionable uses will remain fair uses;
Copyright holders may use common law to limit fair uses; and
If in combination copyright and common law restrict too much expression, we should not throw out the latter with the former.

[NB: The above text comes from part of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. Specifically, it comes from the introduction to Part I, Chapter 4: Fair Use vs. Fared use. You can find a complete draft of the full chapter, together with footnotes, here [PDF]. I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

Copyright Term v. Copyright Inception

Tom W. Bell — Sat, 24 Nov 2007 05:51:00 +0000

The term of copyright has steadily expanded under U.S. law. The first federal copyright legislation, the 1790 Copyright Act, set the maximum term at fourteen years plus a renewal term (subject to certain conditions) of fourteen years. The 1831 Copyright Act doubled the initial term and retained the conditional renewal term, allowing a total of up to forty-two years of protection. Lawmakers doubled the renewal term in 1909, letting copyrights run for up to fifty-six years. The 1976 Copyright Act changed the measure of the default copyright term to life of the author plus fifty years. Recent amendments to the Copyright Act expanded the term yet again, letting it run for the life of the author plus seventy years.

The table above illustrates the growth of the general U.S. copyright term over time, including the retroactive effects of various statutory extensions. Note the overhanging ledges. The 1962-74 Acts, the 1976 Act, and the Sonny Bono Act reached backwards in time, extending the copyright term even for works that had already been created. The Supreme Court has held that legislative trick constitutional, notwithstanding copyright policy's implied aim of stimulating new authorship—not simply rewarding extant authors.

[NB: The above text comes from part of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. Specifically, it comes from Part I, Chapter 3.A.1: Copyright Imbalance: Duration of Copyright. You can find a complete draft of the full chapter, together with footnotes, here [PDF]. I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

HD Crash

Tom W. Bell — Tue, 20 Nov 2007 04:44:00 +0000

Ack! After a wonderfully productive week of writing, and before I'd backed up everything, my computer's harddrive crashed. I'm now logging on from an old laptop. Fortunately, I'd been uploading PDFs to this site as I go. At worst, then, I'll have to resort to OCR or brute typing to recreate the Word docs I've lost. And if things work out very well, the pros on the Geek Squad will be able to recover my lost data. I've been slowed, but hardly stopped.

Copyright on the Third Hand

Tom W. Bell — Sun, 18 Nov 2007 00:58:00 +0000

Larry Lessig recently emailed several helpful tips for my book-in-progress, Intellectual Privilege: Copyright, Common Law, and the Common Good. He suggested, for instance, that I post on the book's home page a brief summary of its theme. I came up with this:

Two views monopolize the ongoing debate over copyright policy. One view denigrates all restraints on copyrighted information, whether they arise from statutory law, common law, or technological tools. The other view equates copyrights to tangible property, concluding that they merit a broad panoply of legal protections. Left-wingers tend to favor the former position; right-wingers the latter.

I here offer a third view of copyright. I largely agree with my friends on the left that copyright represents not so much a form of property as it does a policy device designed to "promote the Progress of Science and useful Arts" (as the Constitution puts it). I thus call copyright a form of intellectual privilege.

Like my friends on the right, however, I hold our common law rights in very high regard. Hence my complaint against copyright: it violates the rights we would otherwise enjoy at common law to peaceably enjoy the free use our throats, pens, and presses. That is not to say that copyright is per se unjustified. We can excuse facial violations of our common law rights, such as the takings effectuated by taxation or the restraints imposed by antitrust law, as the costs of obtaining a greater good. But it does mean that copyright qualifies, at best, as a necessary evil.

You might say, in other words, that this book invokes a physiological improbability: a third hand. Traditional discussions of copyright policy don't require more than the usual allotment of appendages. On the one hand, we can disparage copyright together with all other means of protecting expressive works. On the other hand, we can exalt copyright as a form of property more powerful than any common law right to the contrary. If we limit ourselves to those two hands, however, we will have to embrace a false dichotomy. In thought, if not in body, we can best grasp copyright policy "on the third hand," recognizing that it cries out for justification because it violates our common law rights, and justifying it—if we can—only as a necessary and proper mechanism for promoting the general welfare.

This third view suggests a great deal about both how present copyright policies malfunction and how to fix them. Most significantly, it opens our eyes to the benefits of an open copyright system, one that encourages authors to rely solely on their common rights and to fully respect our own. Thus might we someday outgrow copyright, discovering that the common law does a better job of promoting the common good.

I plan to use that text, together with some other more workaday stuff, as the book's introduction. As always, I welcome your comments.

[Crossposted to Agoraphilia and The Technology Liberation Front.]

The Indelicate Imbalancing of Copyright Policy

Tom W. Bell — Fri, 16 Nov 2007 19:00:00 +0000

Courts and commentators often claim that copyright policy strikes a delicate balance between public and private interests. I see copyright policy in a different pose, however. I see it wobbling precariously, tipping over, and falling into statutory failure. What has put copyright on such unsure footing? The brutish prodding of special interests. Rather than "delicately balanced," then, I describe copyright policy as "indelicately imbalanced."

Perfect policy equipoise will always elude us. We don't have the numbers necessary to put copyright's many various factors into exact balance. How can we quantify the importance of Picasso's Guernica, for instance, or of Dr. Suess's, Yertle the Turtle? In most cases, the numbers simple do not exist. What numbers we can pin down, moreover, appear to us only in a haze of uncertainty.

We can, however, keep an eye open for evident policy disasters, taking care to steer clear of obvious hazards. We should moreover guard against letting copyright maximalists seize the tiller, lest they overemphasize private interests to the detriment of public ones. We should instead take the Constitution as our lodestar, following its call to "promote the general Welfare" and "the Progress of Science and useful Arts" by checking the excesses of copyright policy.

[NB: The above text comes from part of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. Specifically, it comes from the introduction to Part I, Chapter 3: The Indelicate Imbalancing of Copyright Policy. You can find a complete draft of the full chapter, together with footnotes, here [PDF]. I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

Uncopyright Notice: (¢)

Tom W. Bell — Wed, 14 Nov 2007 22:45:00 +0000

For better or (more likely) worse, copyright now automatically encumbers every new fixed work of authorship. Copyright kicks in as soon as anyone writes an essay, doodles a sketch, or bangs out an email. A copyright's holder need not register the work or put notices on copies of it to qualify for copyright protection.

If you want to play it safe, you should thus probably assume that some sort of copyright claim binds every fixed work. Even very old works often come with modern copyright strings attached. Consider, for instance, John Stuart Mill's classic work, On Liberty. Though the book originally issued in 1859, and has long since fallen into the public domain, my library's copy includes a notice reading, "Copyright 1978 by Hackett Publishing Company, Inc." Presumably, that copyright covers only the editor's introduction and selected bibliography. Yet Hackett's overbroad notice doubtless discourages some people—especially those who know little about copyright law—from reproducing even the free parts of On Liberty.

In that and other ways, copyright policy currently fails to admit to its limitations. Cautiously presuming that copyright covers every fixed work, and duped by inflated copyright notices, we fail to fully enjoy our rights to the public domain. We should aspire to a more open copyright system, one that encourages both the creation of new works and the liberation of extant ones. For that, we need a way to signal, clearly and reliably, when a work has escaped the bounds of copyright. We need, in other works, an uncopyright notice.

The Copyright Act provides that copyright holders can brand their works with "Copyright," or "Copr.," in lieu of the copyright symbol, "©." An uncopyright notice would naturally read "Uncopyright" or "Uncopr." The uncopyright symbol? A "©" overlaid with a backslash, per the international iconography of things forbidden. In cases where such graphics prove too troublesome, the cents character in parentheses—"(¢)"—would do nicely.

Where will uncopyrighted works come from? Some will come from clearly unprotected parts of the public domain. The worthy Project Gutenberg, for instance, offers favorite old texts on the web, unencumbered with copyright protection, in an easily-accessed format. New works, too, might carry "(¢)" marks, put there by authors eager to help build the public domain.

[NB: The above text comes from part of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. Specifically, it comes from a portion of the draft of Part III, Chapter 7: Uncopyright and Open Copyright. You can find a complete draft of the full chapter, together with footnotes, here [PDF]. I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

Intellectual Privilege Imagery

Tom W. Bell — Thu, 08 Nov 2007 21:11:00 +0000

To accompany the text of my book-in-progress, Intellectual Privilege: Copyright, Common Law, and the Common Good, I've been trying to come up with some appropriate imagery. I'm looking for descriptive and striking graphics that at least hint at the book's theme. Let me see what you think about three images, one for each of the three phrases in the book's subtitle.

For "Copyright": A red c-clamp, tight shut, within a circle of chains. I doubt that I need to explain that image, much. The red clamp would make for a nice favicon, too.
For "Common Law": A chain strung along a series of posts, such as you might see marking lines in a bank or in front of a painting in a gallery. That represents the gentle but firm guidelines established by contract, property, and tort law.
For "the Common Good": A computer screen showing a long string of alternating zeros and ones. These numbers—". . . 0 1 0 1 0 1 0 1 . . ."—would represent both binary code and the links of a chain, each of them free of the others and rotated to stand proudly upright.

Why worry about mere pictures so early in the process? I'd say "pleasantly muse" rather than "worry"; I like illustration puzzles. I find, too, that good visual symbols can help me work up good verbal symbols.

[Crossposted to Agoraphilia..]