Intro.
Ch. 1
Ch. 2
Ch. 3
Ch. 4
Ch. 5
Ch. 6
Ch. 7
Ch. 8
Ch. 9
Ch. 10
Concl.

Intellectual Privilege: Copyright, Common Law, and the Common Good

Here you will find an early version of my book-in-progress. You can get a feel for the book by reading the bit of the introduction I've posted below and perusing the table of contents that follows. You can download a PDF of the entire book here (draft v. 2008.07.31), or you can download single chapters via the sidebar to the left. I welcome you to email me at with your comments.

• Introduction: Copyright on the Third Hand [PDF] draft v. 2008.07.31

  Excerpt:

  Two views dominate the ongoing debate over copyright policy. One view denigrates all restraints on expression, whether they arise from the Copyright Act, the common law, or technological tools. The other view equates copyrights to property rights, concluding that both alike merit diligent protection and profound respect. Left-wingers tend to favor the former position; right-wingers the latter. I here offer a third view, one that regards copyright as a statutory privilege distinctly different from, and less justified than, the common law's protection of our persons, property, and promises.

  I largely agree with my friends on the left that copyright represents not so much a form of property as it does a mere policy tool, 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 of promoting the general welfare.

  As a creature of statute, copyright represents a notable exception to our natural and common law rights. Leftists too often fail to make that distinction, instead treating all rights as nothing more than manifestations of State power. On that point, I agree with my friends on the right, who aver that the common law, because it instantiates our natural rights, merits special regard. Hence my complaint against copyright: it violates the natural and common law rights that we would otherwise have to peaceably enjoy the free use our throats, pens, and presses.

  That critique hardly renders copyright unjustified per se. 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 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 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.

  . . .

• Part I: A Portrait of Copyright

  • Chapter 1: Copyright Illustrated; Common Law Sketched [PDF] draft v. 2008.07.31

    • I. Several Portraits of Copyright
      • A. Copyright's Path
      • B. Copyright, Mapped
      • C. An Economic View of Copyright
        • 1. The Standard Economic Model of Copyright
        • 2. The Specter of Copyism
        • 3. Discouraging Just Enough Infringement
    • II. A Birdseye View of the Common Law
    • Conclusion: Looking Beyond Copyright

  • Chapter 2: The Unnaturalness of Copyright [PDF] draft v. 2008.07.31

    • Introduction
    • A. Why Care About Copyright's Naturalness?
    • B. Copyright's Unnatural Origins
      • 1. Original Meaning via State Copyright Acts
      • 2. Original Meaning via Madison on Copyright
    • C. Copyright in Natural Rights Theory
      • 1. Locke's Labor-Desert Justification of Property
      • 2. Barnett's Positivist Account of Natural Rights
      • 3. The Morality of Unauthorized Copying
    • Conclusion: Natural Rights, Here and Now

  • Chapter 3: Copyright as Intellectual Property Privilege [PDF] draft v. 2008.07.31

    • Introduction
    • A. In Other Words
    • B. Why to Call Copyright "Privilege"
      • 1. Copyright as a Statutory Exception to Common Law
      • 2. Copyright as Not a Fundamental Civil Right
    • C. Why to Not Call Copyright "Property"
      • 1. Right to Exclude
      • 2. Use
      • 3. Alienation
      • 4. Acquisition
      • 5. Preservation
      • 6. Compensation for Takings
      • 7. Property as a Web of Relations
    • D. Defending Property-sm
    • E. Rhetorically Rebalancing Copyright
    • Conclusion

  • Chapter 4: The Indelicate Imbalancing of Copyright Policy [PDF] draft v. 2008.07.31

    • Introduction
    • A. Copyright's Imbalance
      • Duration of Copyright
      • Scope of Copyright
      • Power of Copyright
      • Complexity of Copyright
      • Limits on Copyright
    • B. Copyright's Indelicacy
    • C. How to Assess Copyright Policy
    • Conclusion

• Part II: Fixing Copyright

  • Chapter 5: Fair Use vs. Fared Use [PDF] draft v. 2008.07.31

    • Introduction
    • A. Fair Use
      • 1. Fair Use is Not Free Use
      • 2. Fixing Market Failure
      • 3. Maintaining Copyright's Quid Pro Quo
      • 4. Fair Use Continues to Bar Copyright Censorship
    • B. Fared Use
    • Conclusion

  • Chapter 6: Codifying Misuse [PDF] draft v. 2007.12.20

    • Introduction
    • A. Copyright Misuse in the Courts
    • B. A Sentence-by-Sentence Explanation of Proposed § 107(b)
      • 1. Sentence One
      • 2. Sentence Two
      • 3. Sentence Three
    • C. Section 107(b) in Practice
    • Conclusion

  • Chapter 7: Deregulating Expressive Works [PDF] draft v. 2008.07.31

    • Introduction
    • A. From Central Command to Decentralized Discovery
    • B. Abandoning Copyright
    • C. Safeguarding Common Law Rights
    • D. Copyright Abandonment for Fun and Profit
    • Conclusion

• Part III: Beyond Copyright

  Chapter 8: Uncopyright and Open Copyright [PDF] draft v. 2008.07.31

  • A. The Uncopyright Notice
  • B. Blockheaded Authors
  • C. A Free Birthday Song
  • D. Towards an Open Copyright System

  • Chapter 9: Outgrowing Copyright [PDF] draft v. 2008.07.31

    • I. An Economic Model of the Effect of Market Growth on Copyright
      • A. The Model's Assumptions
      • B. The Parable of the Village Authors
      • C. Modeling the Effect of Growth in the Copyright Market
    • II. Objections and Answers
      • A. Will New Entrants Reduce Monopoly Profits?
      • B. Do the Facts Fit the Theory?
    • III. Ramifications for Copyright Policy
    • Conclusion: The Benefits of Consumer Specialization

  • Chapter 10: Copyright in 2028: A Letter from the Future [PDF] draft v. 2008.07.08

• Conclusion: The Packet Switched Society [PDF] draft v. 2008.07.31

• Glossary

• Index

This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 Unported License.