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.
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