Intellectual Privilege: A Libertarian View of Copyright
a draft book
You can get a feel for the draft book by reading the introductory passage I've posted below or by perusing the table of contents that follows. You can download a PDF of the draft here. I welcome your coments at .
Introduction: Copyright on the Third Hand
Two views dominate the ongoing debate over copyright policy. The view from the left denigrates all restraints on expression, copyright and common law alike. My left-leaning counterparts would both loosen the Copyright Act's statutory restrictions on unoriginal speech and ban private alternatives, such as contracts or technological tools, that might likewise limit the unauthorized use of protected expressions. The view from the right, in contrast, favors painting copyrights as akin to the sort of customary and common law rights that have protected land and chattel property for so long and so well. My right-leaning counterparts conclude that all such property merits diligent protection and profound respect. This book offers a third view of copyright policy, one from a libertarian vantage point. On that view, copyright represents a statutory privilege distinctly different from, and less justified than, the common law rights we enjoy in our persons, property, and promises. These pages describe and defend a-not "the"-libertarian view of copyright policy. Reasonable libertarians will doubtless disagree with many of the finer points, and some of the major ones (as will reasonable people in general). Still, I think I can creditably offer this, a common law friendly and classically liberal theory of copyright, as more efficient and equitable than currently popular alternatives. Both left and right have much to teach us about copyright, but each tells only half of the truth.
Left, Right, and Forward
Like most commentators, I largely agree that copyright represents not so much a form of property as a mere tool of policy, one designed to "promote the Progress of Science and useful Arts" (as the Constitution puts it). I thus refer to copyright not as an intellectual property but rather as an intellectual privilege. So understood, copyright's justification relies entirely on whether it provides a "necessary and proper" means to "promote the general Welfare, and secure the Blessings of Liberty" (to again quote the Constitution).
As a creature of statute, copyright represents a notable exception to our natural and common law rights. My friends on the left too often fail to make that distinction, instead classifying copyright as one of the many manifestations of State power that parade under the name of "property" and that we rightly subordinate to freedom of expression, security from want, distributional fairness, popular will, or other values. On that point, I instead hold that the common law, because it largely instantiates our natural rights, merits special regard. Hence my complaint against copyright: it violates the natural and common law rights that we would otherwise enjoy to freely use of our throats, pens, and presses. Hence also the argument I make to my friends on the right: Copyright does not merit as much respect as tangible forms of property; as a statutory privilege to violate other, more fundamental rights, copyright instead merits our critical scrutiny.
That critique of copyright hardly renders it unjustified per se. We can in theory excuse facial violations of our natural and common law rights, such as the takings effectuated by taxation or the restraints imposed by antitrust law, as the costs of obtaining a greater and more common good. So we might in theory justify copyright, too. But even then copyright would rank as a necessary evil, at best. And even then, its status would rely on the contingencies of fact. If, for instance, as argued below, technological and social developments tend to render copyright unnecessary, it will someday rank as simply an evil. Perhaps, in some areas and in some respects, that day has already come. Regardless, we would at all events want to learn how to keep copyright within its proper bounds. I thus offer here not an attack on copyright, but rather an appreciation of its noble goals, a frank account of its recent excesses, and some friendly advice about how to once more put copyright in the service of the general welfare.
On One More Hand
You might thus say that this book invokes a physiological improbability: a third hand. Traditional discussions of copyright policy do not require more than the usual allotment of appendages. On the one hand, we can disparage copyright together with common law mechanisms for 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 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 public good.
This third view suggests a great deal about both how current copyright policies malfunction and how to fix them. The insights of a libertarian view of copyright include:
- A picture of copyright's relation to other forms of IP;
- A birds-eye view of common law;
- An economic model for maximizing copyright's social benefits;
- The non-natural, statutory origins of copyright;
- Reasons for respecting others' copyrights;
- Copyright as privilege, not property;
- The indelicate imbalancing of copyright policy;
- Fared Use as a welcome replacement for fair use;
- Using copyright's misuse defense to open an exit to the common law;
- Why and how to deregulate access to original expressive works;
- The benefits of uncopyright and an open copyright system;
- An account of why we will outgrow the need for copyright; and
- A picture of life in a world free of copyright.
To speak more generally, a libertarian view opens the prospect of moving beyond copyright's statutory privileges to once more rely on the common law to promote the common good.
I do not want to claim too much for this book's originality, however. The libertarian theory explored here finds its most direct precedents in the work of Thomas Jefferson, Tom G. Palmer, Timothy Sandefur, and other thinkers sensitive to the conflict between natural rights and copyrights. To that, I add institutional analyzes inspired by the likes of Friedrich A. Hayek, who explained spontaneous orders, and the public choice school, which ably explains the incentives that influence lawmakers' behavior (and, sometimes, misbehavior). Randy Barnett has helped me to appreciate the source and importance of natural rights, while Richard A. Epstein and Bruno Leoni have taught me to appreciate the power and elegance of the common law's few simple rules. Economics can teach us a great deal about the function, proper limits, and probable future of copyright; William Landes and Richard Posner, among others, have influenced me on that front. Though this book aims to construct a new theory of copyright, therefore, it builds on good, old foundations.
This book thus does not-indeed, given its limited scope and aims, it could not-offer a comprehensive defense of such fundamentals of libertarian theory as the significance of natural rights, the problems of political failure, and the relative fairness and efficiency of common law rules. My friends from the left, who tend more than those from the right to regard such notions skeptically, might in particular find my brevity on such points, however necessary, frustrating. For that, I can only sympathize, apologize, and suggest recourse to the libertarian scholarship amply cited throughout the text. Readers new to libertarian theory should also find that they can discern its outline, and some proof of its utility, in it observing how these pages apply it to copyright policy. Notably, this book nowhere advocates the eating of children. It does not even call for striking down the Copyright Act, monetizing all exchanges of expressive works, or kicking starving artists to the gutter. To the contrary, a libertarian view of copyright ends up confirming many opinions-that the Copyright Act pursues noble aims, that we can thank the gift economy for many expressive works, and that great artists merit our respect, for instance-that sound so popular as to verge on banal. The same viewpoint also suggests original criticisms of, fixes to, and predictions about copyright policy. Those welcome results perhaps tell us something about the virtues of libertarian theory. These pages do not go very far beyond that sort of proof-in-the-pudding to explain or justify libertarian theory, however, leaving that for other pages and other authors.
Structure of the Book
Part I of the book describes copyright from a freedom-friendly, natural rights-respecting point of view, a vantage that offers many fresh and telling observations. Chapter 1 offers a quick introduction to copyright, describing its fundamental nature, its constitutional roots, its statutory enactment, and its relation to other legal entities. Chapter 2 turns to copyright policy, describing the market failure that copyrights aim to cure and evaluating how well they work. Chapter 3 measures copyright against natural rights theory, unveiling a strong case for regarding copyright as an unnatural statutory privilege.
That skeptical take on copyrights does not mean they merit no respect; as Chapter 4 explains, many moral considerations weigh against infringement. It does mean, though, that we should distinguish copyrights from natural and common law rights. Adopting the sort of terminology suggested in Chapter 5-speaking of copyright as an intellectual privilege entitling its holder to restrict others from exercising their natural and common law rights-would help. "Property" does a poor job of describing copyright.
Part I's libertarian perspective on copyright ends with a slightly sinister portrait. In contrast to the many courts and commentators who claim that copyright policy strikes a delicate balance between public and private interests, chapter 6 argues that copyright policy, even at its best, puts those forces into an indelicate imbalance. "Indelicate" because issued from the rough-and-tumble of political processes; "imbalance" because, even if they wanted to, policymakers could not fine-tune copyright to maximize social utility. Lawmakers do not demand the sort of numbers that delicately balancing copyright would require-number that, at any rate, do not exist.
Everyone can agree that copyright has not achieved perfection. Part II suggests several ways to improve copyright, promoting the public welfare more efficiently and treating natural and common law rights with more respect. Chapter 7 explains why the fair use defense will shrink as licensing opportunities grow, and why we should welcome markets in original expressive works. Copyright holders might combine their statutory and common law rights to claim too much control over expressive works, granted, but, as chapter 8 suggests, the misuse defense offers a ready cure. Chapter 9 describes how to open an escape to a better world, one where the common law supplants copyright in promoting the authorship of original expressive works.
How would that sort of world, one free of copyrights and yet rich in consent and originality, work? Part III offers some forecasts. Chapter 10 explains how uncopyright and blockheaded authors can overcome the supposed market failure that justifies copyright. Chapter 11 offers an economic analysis suggesting that as markets for expressive works grow, the need for copyright shrinks. Chapter 12 offers a letter, written from the year 2029, describing how the common law does a better job of promoting the general welfare, and progress in the useful arts and sciences, than copyright did.
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Table of Contents
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