Copyright law is generally justified under three theories.1

The first is the utilitarian, or consequentialist, basis. Society benefits from the production of creative works. But in the absence of legal protection, creative production tends to be inefficient since costs of creation are high while costs of copying and distribution are low.

The second form of copyright justification is based on moral rights or personality claims. This theory embraces the view that expressive works are the extension of one’s self and thus are deserving of protection because of an individual’s inherent dignity.2

The final theory owes its origins primarily to the work of Enlightenment philosopher John Locke. Here, the justification of copyright stems from the right of an individual to control the fruits of his labor.

Generally speaking, Anglo-American copyright law adheres more closely to a utilitarian system while Continental legal systems start with a moral rights basis — though there is plenty of overlap in the two systems. The Lockean justification, however, has largely fallen out of favor among academics and policy makers.

But as legal professor Adam Mossoff explains in his recent article Saving Locke from Marx: The Labor Theory of Value in Intellectual Property Theory, Locke’s justification has been “relegated to the dustbin” of history not because it is faulty, but because it has been misunderstood. As Mossoff puts it, “Locke’s labor theory of value has suffered much at the hands of contemporary philosophers.”

According to the abstract:

The labor theory of value is fundamental to John Locke’s justification for property rights, but philosopher Edwin Hettinger argued in an oft-cited article that it fails to justify intellectual property rights. In making this critique, though, Hettinger redefined Locke’s theory into a theory about proportional physical labor creating economic value, just as Robert Nozick, G.A. Cohen and other philosophers have done. In response to this strawman attack, this article describes Locke’s labor theory of value and how Locke himself applied it to intellectual property rights. It does so by analyzing the actual text of the Second Treatise, including many forgotten or neglected sections, and by integrating Locke’s property theory within the context of his natural law ethical theory, as presented in An Essay Concerning Human Understanding and in other works. In its proper context, Locke’s concept of labor refers to production, which is both an intellectual and physical activity. His concept of value refers to what serves the flourishing life of a rational being, which is a conception of the good that is more robust than merely physical status or economic wealth. Locke’s own text and philosophical arguments answer the absurdities imposed on him by Hettinger, Nozick, Cohen and others. Even more important, understanding his labor theory of value explains why Locke expressly approves of inventions in his property theory and why he explicitly argues that authors have property rights (copyrights) in their writings, which are arguments that are seemingly lost on his modern critics.

For non-philosophers, like myself, the writing may at times be dense, but it is no less important and well worth a read. As Mossoff points out, the Lockean view of copyright was prevalent in the US during the 18th and 19th centuries. The Continental Congress resolution to the States to pass copyright legislation was inspired in part by lobbying from author Joel Barlow. His 1783 letter to the Congress reads in part:

There is certainly no kind of property, in the nature of things, so much his own, as the works which a person originates from his own creative imagination: And when he has spent great part of his life in study, wasted his time, his fortune & perhaps his health in improving his knowledge & correcting his taste, it is a principle of natural justice that he should be entitled to the profits arising from the sale of his works as a compensation for his labor in producing them, & his risque of reputation in offering them to the Public.

Twelve of the thirteen existing states passed legislation following the resolution, with the majority of them explicitly espousing the principle that authors are entitled to the value of their labor.

Labor and Value

Since that time, legal scholars and philosophers have eroded this prevalent view. Mossoff explains why. John Locke, the Founding Fathers, and early American jurists weren’t laboring (pardon the pun) under a false assumption; it is the legal scholars and philosophers who are mistaken, misconstruing Locke’s notion of labor with only physical labor and his notion of value with only economic value.

According to Mossoff:

[Locke's] concept of labor refers to production, which has intellectual as well as physical characteristics, and his concept of value serves his moral ideal of human flourishing, which is a conception of the good that is more robust than merely physical status or economic wealth.

The Feist Fallacy

This erosion in Locke’s theory was bolstered by the US Supreme Court’s 1991 decision in Feist Publications v. Rural Telephone Service. There, the Court heard a dispute between two competing publishers of telephone books, with one accused of copying the directory listings of the other. The Court held that the “sweat of the brow” doctrine did not extend copyright protection to factual information — the original publisher of the telephone directory could not claim copyright protection over its collection of telephone numbers merely because it had expended labor compiling them.

Mossoff points out that “intellectual property scholars widely believe that Feist represents an unequivocal rejection of Locke’s labor theory of property in copyright law.” Though not mentioned in the article, noted copyright scholar William Patry, in his 2008 book Moral Panics and the Copyright Wars, goes so far as to say the Court rejected the “labor basis for copyright” as unconstitutional.3 Yet the Court explicitly approved of Locke’s theory, says Mossoff. The “sweat of the brow” doctrine relies solely on the physical labor expended in creation, so when one realizes that Locke was not talking solely of physical labor, one realizes the mistake scholars have made.

Mossoff stops short of endorsing Locke’s justification of intellectual property. As he notes:

This article describes Locke’s argument for his labor theory of value in order to expose the strawman attack on his property theory by contemporary philosophers, especially within intellectual property theory, but it does not purport to justify his labor theory of value. This justification, which raises difficult questions about the foundations of value theory, such as whether values are objective, subjective, or intrinsic, must be left for another day.

It will be interesting to see if scholars build upon Mossoff’s work, but my hope is that Locke’s labor theory regains its stature among the other justifications for copyright. We live in a global, pluralistic society, and legal doctrines, including copyright law, should enshrine pluralistic justifications. Just because someone — whether an individual or a multi-billion dollar corporation — can exploit the value of someone else’s labor doesn’t make the fact that they shoulda foregone conclusion. In Locke’s words, man is a “proprietor of his own person”, and because of this, as Mossoff interprets Locke, “value-creating, productive labor is a moral activity that creates in the laborer a moral claim to the products of his labor.” These principles have served society well, and no technological innovation can render them obsolete.

Footnotes

  1. Moore, Adam, “Intellectual Property“, The Stanford Encyclopedia of Philosophy (Summer 2011 Edition), Edward N. Zalta (ed.); see also the Wikipedia entry on Justifications for copyright. []
  2. As with the utilitarian justification of copyright, rights-based theories are not static. Recent work by Abraham Drassinower, for example, presents a rights-based justification of copyright that conceives works as communicative acts. []
  3. Pg. 65. []

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15 Comments

  1. “Yet the Court explicitly approved of Locke’s theory, says Mossoff. The “sweat of the brow” doctrine relies solely on the physical labor expended in creation, so when one realizes that Locke was not talking solely of physical labor, one realizes the mistake scholars have made.”

    Might you be able to elaborate on your point here?

    As an aside, Feist has always confused me by its animus towards “sweat of the brow” given the very first class of subject matter that is recited in the 1790 act. As a former naval officer I well know that maps and charts are classic examples of works that arise almost exclusive from “sweat of the brow”. They represent to collection of copious data that is commited to written form, just as in Feist.

    I have known Adam for several years, and I must agree that his body of scholarship is at times difficult to comprehend given its philosophical uderpinnings and nuanced presentation. It is well worth it, however, to study his work carefully because he challenges the group-think so prevalent today.

    • “Yet the Court explicitly approved of Locke’s theory, says Mossoff. The “sweat of the brow” doctrine relies solely on the physical labor expended in creation, so when one realizes that Locke was not talking solely of physical labor, one realizes the mistake scholars have made.”

      Might you be able to elaborate on your point here?

      As I understand it, Locke’s conception of labor refers to both physical and intellectual labor. Feist held that the “touchstone” of copyright protection is originality — the product of intellectual labor — and that protection cannot extend to facts, no matter the amount of physical labor exerted in collecting those facts.

      The mistake made is thinking Locke was referring only to physical labor. Viewed that way, Feist’s holding seems to renounce Locke’s theory. But when you recognize what Locke actually meant by labor, Feist is more consistent with his theory. As the Court said, copyright protection can extend to the selection, coordination, and arrangement of factual collections — that is, when intellectual labor is exerted to produce a writing with the requisite originality.

  2. Curiously, moral rights are the one aspect of European copyright law that American corporate interests don’t want…because it BENEFITS authors of work-for-hire projects!

    Example: Terry Nation created The Daleks as part of his work-for-hire assignment to write scripts for the BBC’s Dr Who tv series.
    Because they were HIS creations, whenever the BBC or it’s licensees use The Daleks on the show or in licensed products (toys/books/lunchboxes/etc), Terry gets a percentage of the income! (At this point it’s his estate, since Terry passed away several years ago)
    In addition, Nation had produced his own non-BBC products featuring The Daleks (without using other Dr Who characters or backstory) and even shopped around a Dalek tv series in the 60s-70s to American networks (who turned it down due to budget constraints)

    Can you imagine how Marvel/Disney or DC/Time-Warner would react if they had a similar situation involving creators like Jerry Siegel & Joe Shuster (Superman) or Jack Kirby (Thor/Iron Man/Captain America/X-Men/Fantastic Four, etc)?
    Think of how much in royalties they’d owe them!
    The recent Gary Friedrich/Marvel lawsuit over Ghost Rider would’ve gone with a totally-opposite ruling!

  3. It’s fun seeing this pop up here, since I’m currently reading Robert P. Merges Justifying Intellectual Property.

    In JIP Merges seeks to understand IP within a rights based framework and he weaves together an interesting reading of Locke, Kant, and Rawls, seeking both to justify as well as explain intellectual property. So Massof’s article will be a nice supplement. Will be interesting to contrast and compare.

    I recommend Merges book, it’s under-edited, but full of stimulating passages.

  4. Locke was a smart guy and all, but the whole property stuff is a bunch of crap. Both for physical and intellectual. America itself is a country that was stolen from it’s original occupiers, who were largely wiped of out of existence by a genocidal populace and today forced to live on government “reservations” with only quasi-sovereignty afforded to them. How utterly convenient is it to talk about property rights after the fact. No one wonder nobody pays too much mind to this part’s of Locke’s theory. It’s not even new. Thomas Jefferson himself changed “property” to the “pursuit of happiness” as part of self-evident rights.

    The moral rights for copyright are cute, because it’s as if inspiration comes from a vacuum. Give me a break, everything in the world builds on someone else’s work. Be sure to credit your English teachers at least!

    I personally only prescribe to the first “utilitarian” basis for copyright, since it’s the only one that isn’t so simple to tear apart. But you have to balance the utility of copyright with the damage it does to the dissemination of knowledge and culture, and frankly that’s not being done.

    • Kinda jumping topics there ain’tcha, M? Since you posit that the land of America was stolen from its rightful owners, you must allow for some property right those owners had in the land. If they had no ownership of it, it could not have been stolen, so whence the property right?

      As for building on top of others’ work, a story might illustrate the key points:

      Outside the village, a wind-borne seed has taken root and grown into a tall tree that bears the most succulent fruit. The fruit-bearing branches are high, however, and picking the fruit is no mean feat of dexterity, while those that fall are already over-ripe and rot quickly.

      You, being nimble of limb, have undertaken to climb up into the high branches and managed to pick a whole basketful. This you intend to profitably sell in the market place.

      Having climbed down from the tree, you engage in conversation with people from the village who are marvelling at your tree-climbing skill. Whilst you are distracted, I sneak up with a bucket and make off with the fruit you have picked, leaving you with an empty basket.

      The fruit is wild-growing and there’s plenty more on the tree, that you could pick by climbing up there again. So, what – if anything – have I stolen?

      • Somehow I doubt the analogy really captures the difference that M has stated. It would work far better if you applied the same concept of knowledge into the equation rather than try to utilize tangible property as the problem.

        Let’s say that you have two sons who you show how to climb the tree. There is one that is really good at climbing the tree. So you take him to climb the tree and you’re able to get to the highest branches which have the best fruit. Now you can take this fruit to market and possibly make a fair share of money from just the raw materials.

        And yet, your other son has his own talents that make the fruit more valuable. Through the magic of knowledge, he’s learned how to take those fruits and make a delicious pie that is a commodity in the town. The pies actually go for more money and you find that the best time to sell each item (the raw fruit and the pies) are at different times of day. So you decide on both and make more money than you did before just selling raw fruits. The people are happy because they have a diverse market to choose from. You’re happy because you can cover the costs of people picking their own fruits because the money from the pies covers that. Maybe you could form another business where the second son actually makes pies from what others catch and create a family business. He has the knowledge. Just as the first son has the knowledge of finding the best fruits. While this is simplified, I believe that would be a much better example of using knowledge as an analogy instead of focusing on tangible goods to try to make the summation that “IP is theft.”

      • Faza,

        I just think it is “convenient” to talk about property rights now. I steal something from you, and it becomes my property somehow under the legal system. Now I am concerned about property rights to your stolen property. There is just something wrong with that picture.

        Anyway I think the “pursuit of happiness” is a much more important right than owning property, and I’m glad that was put into own of most important founding documents instead of “property”. The whole point I think of the society is to make sure people are happy. Trying to claim some piece of rock or piece of land that was a forest or someone’s village before you came around, or claiming ownership on some idea that you can’t even claim came entirely from you as your exclusive right seems to me wholly bad way of looking at things.

        —-

        I’m going also change your fruit analogy a bit. IP is more as if someone ‘discovered’ a way to easily climb the branches and get fruit from it. When someone else tries to do that, the original person is like “no wait, that was my idea, you can’t do it!”. This monopoly on ideas is IP in a nutshell.

        IP enforcement is even worse. So the guy puts up armed guards in front of the tree and makes sure no one remotely tries to do the same thing he is doing, and he does random raids of people’s houses to make sure they don’t have any fruit from the tree that he didn’t explictly give them. This is what happens when you have hostile third parties watching your Internet use to find “copyright violations” as is the case in some countries like France.

        Oh and by ther way, “alleged IP owner” figured out the best way to get to the top by orginally watching someone do a similar technique on a different tree. Because you know, IP is never created in a vaccum.

        • I think both you and Jay are way off base. IP is not like the method of climbing the tree, or the recipe for baking the pie; neither of which are considered IP. The method would be similar to, for instance, my process for writing a song. The process is not IP, only the song; only the fruit. Do you see? Climbing the tree = my songwriting process. The fruit picked = the IP produced by that labor, i.e. the specific song.

          You both seem to be operating under the assumption that the ideas underlying the creation of a work are protected. They are not. I know that you already know this. Ideas are not eligible for copyright. It’s a convenient strawman, though.

          Jay’s analogy simply moves the property aspect to the pies. Surely he would agree that a third party swiping pies from the windowsill to sell at the local fair is illegal. He might argue that it would be more like copying the recipe and making your own pie, which it should be pointed out is already perfectly legal. But the difference is, digitally speaking, the third party doesn’t bake the pies by his own labor, he copies them through no labor. This is the key difference that most IP-deniers like to artfully dismiss: copying a song/movie with a computer is not at all like being inspired to engage in the labor of creating your own expression.

          Your argument about things not existing in a vacuum is dealt with in this article. Where does it stop? Nothing is created in a vacuum; how can you rectify your view with the notion of tangible property, which you inherit from the labors of others? Every thing in the universe is built of what came before. Stars are born of hydrogen and helium that came from the Big Bang. Planets are built from stardust. I’m built from the planet. This argument of “BUT! everything is derivative!” is as pointless as saying “Things are made of things.” It begs the question.

          • Jay’s analogy simply moves the property aspect to the pies.

            No, it moves the analogy to the knowledge. Anyone can climb up the trees and peruse the fruit. But if you have one son that knows a “secret” to making good pies and another that knows how to collect the best fruit, then that’s the knowledge. Sure, someone could “steal” that knowledge. Perhaps someone could discover the secret and now use it for themselves. Once information becomes non-rivalrous, it will be shared and used.

            The pie issue shows that one son has the secret to making new businesses. And maybe you have someone steal a pie. You’ve lost one tangible good. You can make it up by creating more pies. But that still doesn’t take away the knowledge of how to make the pies. It still doesn’t take away the secret of picking the best fruit. It still doesn’t take away the knowledge of creating more products that people can enjoy. The focus of the argument should be on that information, not the pies. How do people share that information or try to profit from it? Here are two clear examples: Make pies from the fruit of your labor, or pick the best ones to share.

            It’s akin to saying that learning different ways of blacksmithing didn’t create different types of swords. Or different methods of chipping marble doesn’t create a statue. You’re taking material and reallocating it into something more valuable and possibly more profitable. Not everyone is going to want to take the time to create a song. But a number of people enjoy that end result. What I see as a common misnomer is how “people must pay” for the end product. Or how “everyone wants it for free”. This hasn’t been the case. Should I have to pay to look at the Mona Lisa? A Picasso? How about watching a 20 year old movie that no longer commercially viable?

            What I really need to criticize is this here:

            This is the key difference that most IP-deniers like to artfully dismiss: copying a song/movie with a computer is not at all like being inspired to engage in the labor of creating your own expression.

            We moved the analogy to one working with tangible goods. Now let’s discuss this on its own merits.

            Whatever you create can be transformed by others outside of contract. Lady Gaga’s songs can be mixed with Jay-Z’s and create something entirely new. You can’t control what other’s expressions are and it’s ridiculous to try. That’s the concept of derivative works. No one creates in a vacuum. Not only do people remix the news, music or movies, but there can be additional stories told through creative use of ideas.

            If someone is actually stealing a pie, then respond to that. But to say that somehow that is affecting your ability to make money is not understanding the markets that increased knowledge have opened.

            Nothing is created in a vacuum; how can you rectify your view with the notion of tangible property, which you inherit from the labors of others?

            And that’s just the problem here. Digital goods are not tangible property. I can try to control where a song goes, but it’s going to be ineffective in a global market. Right now, I can go to a Korean website, download mp3s and play them on my computer and see if I like those artists. But no way in the world have I suddenly stolen those mp3s from artists such as Lar ‘en Ciel or A Pink because I downloaded their songs. Perhaps if they had a concert I could go to one of their tours and show my support for them and their music. The only way to prevent these types of markets is through all of the issues that the RIAA and MPAA create to maintain their gatekeeper status. Screw over the artist? Check. Bully consumers who practice their fair use rights? Check. Bully ISPs into censoring websites wholesale? Check.

            And yet, none of these are answering the market failure that piracy presents. People prefer watching movies on a “rogue website” over legitimate areas such as Hulu. Or people just find better alternatives and other sources of material to entertain themselves such as Jamendo or Vodo.

            Until those in charge fix their own methods of conducting business, I doubt piracy will be the major concern. Maybe it’s time to put to rest the strawman that piracy is causing so much economic harm instead of bad business practices.

      • Personally I think we stop with these kinds of philosophical justifications for copyright, and focus on what the net value is of copyright.

        I think most people really Terry’s justifications for anti-piracy and quite frankly the utilization argument for copyright is very often used in his anti-piracy arguments and generally in most really convincing ones in my opinion.

        Despite by general disagreements with copyright as it works today, I must say the argument that content creators need to get paid to do good work is with great merit.

        Going on philophisical tangents on the true meaning of copyright, we end up clinging to a definition of copyright that simply does not work in the modern age.

        Any justification for copyright needs to consider the current technology. That is technology where the sum of human knowledge and culture (produced in a fix form) can be shared with anyone. This can not simply be ignored or brushed off as irrelevent. That’s the reality of the modern world and modern technology.

        Trying to make machines and the communication possibilities they offer less useful is not the solution. Face the reality and come up with practical solutions that will ensure content creators can survive in this world. This is what we need badly, to save this arguably important area of human endeavor. Stuff like Spotify and Netflix are bold steps in the right direction.

        • I’m just going to mention this idea I have about how we can accomplish this: http://moderncopyright.blogspot.com/2012/03/fixing-content-industry-blanked.html

          I’m open to any suggestions and improvements.

          • Please come mow my lawn for free. Thanks.

            I love how zealots think that the internet somehow can make selfish fantasy reality… It’s amusing in that way sociopaths can sometimes be.

        • Despite by general disagreements with copyright as it works today, I must say the argument that content creators need to get paid to do good work is with great merit.

          I’m not so sure about that. That seems intent on trying to set up a “copyright welfare system”. Basically, we use copyright law to allocate money to those that benefit the least from that reallocation. This happened in the Jay Maisel case along with Rihanna’s recent lawsuit. What I find odd about the argument is how much technology effectively defeats this rationale. Turntable works by allowing people to stream their music regardless of what it may be. You have Spotify, Jamendo, Youtube, among a number of different websites where you can find entertainment at the touch of a button. People pay for support and patronize the arts in those ways. But where do people pay for a radio station? Their mp3 players? Timeshifted recordings? Odds are people don’t pay as much for entertainment as one is believed. That doesn’t mean that artists haven’t found ways to be paid. I just highly doubt that copyright law should be read in that way.

  5. As I’ve argued before, there is another justification for copyright, namely the *contractual* justification.

    Whatever their views on the foundations of ethics, virtually everyone will agree that people should abide by any reasonable terms of contracts they have freely entered into, subject to obvious provisos about age, sanity, etc. All legal systems have some means of enforcing such contractual obligations.

    More specifically, a prospective seller of an item is entitled to ask a prospective purchaser to accept any reasonable conditions of purchase. If a prospective purchaser accepts those conditions and completes the purchase, he or she is contractually bound by them, and is subject to penalties if the conditions are broken.

    Where the item for sale is a product of creative skill or invention, but is easily and cheaply reproducible, it is also reasonable for the creator to ask for acceptance of conditions which restrict subsequent distribution and reproduction of the item. Without such conditions, the ‘market’ is in principle reduced to a single purchaser, and the aggregate value of the work is reduced to the price that single purchaser is prepared to pay; a result which the seller may quite reasonably wish to avoid.

    If the prospective purchaser desires the item for his or her personal use, he or she will probably accept such restrictions as reasonable, and will complete the purchase. (If he or she desires the item for other purposes, such as making a remix or sample, the terms and conditions can be negotiated separately.)

    Note that I say creators can reasonably *ask* purchasers to accept such conditions. The prospective purchasers are of course entitled to reject them, in which case they can either try to negotiate alternatives, or simply not buy the work in question. What they are not entitled to do is to accept reasonable contractual conditions and then break them.

    It is in fact common for copyright law to be reinforced by contractual terms, for example when you sign up to an online service. In practice the great weakness of a purely contractual approach is the difficulty of pursuing any redress against people who are not the original purchasers but who acquire the work subsequently. In principle it is possible to require the first purchaser to impose conditions on subsequent purchasers, and so on, in a potentially endless chain, but often the first purchaser will be a ‘man of straw’ who cannot usefully be pursued. (I note that in the United States the ‘first sale’ doctrine might be an obstacle to a chain of contractual conditions, but that is merely a local legislative quirk.) I am not suggesting that the contractual approach by itself would be adequate in practice to secure creators’ legitimate interests, but we are talking about ethical principles, not practicalities, and I think the contractual justification is less open to objections of principle than Locke’s.

  6. Pingback: 15 Objections to Copyright from 1855 | Copyhype