Intro.
Ch. 1
Ch. 2
Ch. 3
Ch. 4
Ch. 5
Ch. 6
Ch. 7
Ch. 8
Ch. 9
Ch. 10
Ch. 11
Ch. 12
Concl.

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 (draft v. 2009.02.05). I welcome your coments at .

Introduction: Copyright on the Third Hand

Excerpt:

Two views dominate the ongoing debate over copyright policy. The view from the left denigrates all restraints on expression, and would both loosen the Copyright Act's restrictions and ban private alternatives, like contracts or technological tools, that limit the unauthorized use of protected works. The view from the right, in contrast, equates copyrights to traditional property rights and concludes that both alike merit 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, common law rights in persons, property, and promises. These pages describe a libertarian view of copyright policy, justify it as more equitable and efficient than the alternatives, and explain how to put it into practice.

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 of promoting the general welfare.

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 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 enjoy to freely use of our throats, pens, and presses. Hence also my argument against the right-leaning assumption that copyrights merit the same respect as any other form of property. Copyrights, as salient violations of other, more fundamental rights, merit our skeptism.

That critique hardly renders copyright 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 good. So we might in theory justify copyright, too. But even then copyright would rank as a necessary evil, at best.

On One More Hand

You might say 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 will 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. The insights of the 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 economic explanation 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.

Structure of the Book

Part I of the book describes copyright from a freedom-friendly, natural rights-respecting point of view. That vantage reveals several interesting features. Chapter 1 offers two original portraits of copyright and a bird's eye view of the common law. Chapter 2 casts an economic eye on copyright and discovers the benefits of optimal infringement. 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" describes copyright poorly.

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. The requisite numbers do not exist.

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 from copyright to a better world, one where common law alone suffices to nurture expressive works.

How would that sort of world, one free of copyrights and yet rich in consent and culture, work? Part III offers some forecasts. Chapter 10 explains how uncopyright and blockheaded authors might help us to 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.

. . .

Table of Contents


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Intellectual Privilege - intellectualprivilege.com/book.html - v.2000.02.05