Future of TV Coalition: FCC Set-Top Item Is Google Gift — “Glist said that the set-top proposal was essentially a battle between Google and apps. ‘Google would like to have all information assimilated and searchable through their browser so they can find data and sell ads against their content,’ he said, ‘and they are unhappy with the choice of consumers to consume more and more content, including MVPD and over-the-top video content, through apps, in which they have very little visibility.'”

George Washington key to intellectual property rights — May and Cooper write, “George Washington regarded protection of property rights a matter of justice. He also considered protections for copyrights and patent rights necessary for sustaining the new nation’s economic independence. Washington’s consistent support for IP even precedes the Constitution’s adoption. In the early 1780s, he became an acquaintance of author Noah Webster. Washington’s letters of introduction helped Webster successfully lobby the Virginia legislators for a state copyright law in 1785.”

The Reality of Touring Revenue From Someone Who Has Done It For 32 Years — David Lowery sheds light on the financial aspects of touring for musicians and why it is very rarely a substitute for declining recorded music revenues.

Video: Understanding the Problem Behind #WTFU — Earlier this week, a popular YouTube creator posted a video criticizing YouTube’s approach to protecting copyright, saying, among other things, that it didn’t adequately preserve fair uses of copyrighted material. Here, Jonathan Bailey responds, noting that, while sympathetic to the concerns expressed in the video, the problem is that the amount of material uploaded to YouTube requires the use of automated systems to deal with infringement, and those automated systems are not 100% perfect.

SAG-AFTRA Applauds WIPO Beijing Treaty On Performers’ Rights — This week, the White House transmitted the WIPO Beijing Treaty on Performers’ Rights to the Senate for advice and consent. The treaty, concluded four years ago, sets minimum standards for the protection of audiovisual performers. The White House also transmitted a second WIPO treaty, The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.

How they shot GREASE LIVE — A fantastic interview of Carrie Havel, associate director of Fox’s recent production of Grease Live, that takes a behind the scenes look at the work that went into pulling off the show.

Universal and Disney’s Arrangement on Marvel IP in Theme Parks — Although Universal and Disney are competitors, Universal’s Island of Adventure theme park includes a Marvel Comics attraction, Marvel Super Hero Island. The attraction was licensed prior to Marvel’s acquisition by Disney, and Universal has committed to maintaining that arrangement. This article looks at this interesting arrangement in more detail.

Kacey Musgraves Puts Hammer Down on Stolen Work: ‘Think Before You Buy’ — “Theft is not a compliment,” says the young country music star about unlicensed uses of her song lyrics.

What Exactly Does the EFF Want? — David Newhoff asks, “What in blazes does the EFF want? They don’t like law-enforcement remedies for online piracy, and they apparently don’t want to see voluntary cooperation between OSPs and rights holders either. At a certain point, it seems we have to conclude that what they want most of all is to maintain their relevance by constantly finding a problem for every solution.”

Copyright Works: Professional Authors Tell It as It Is — Read the personal experiences of authors from South Africa, Sudan, Panama, Canada, Australia, Malawi, and India in this booklet from the International Authors Forum.

Sorry slacktivists: The Man is shredding your robo responses — Orlowski: “The EU this week binned thousands of responses to a copyright consultation generated by a Canadian lobbying group OpenMedia, a groupuscule funded by Canada’s technology industry. In December, OpenMedia declared that the European Commission was going to “copyright the hyperlink” and urged people to submit a roboform to “Save The Link”. Scared out of their wits, 75,000 people did just that. The problem was that the scare was entirely bogus. Even academics hostile to copyright declared that the EU wasn’t proposing anything of the sort. The protections safeguarding publishers large and small would remain intact.”

FilmOn X Not Entitled To Cable License, Broadcasters Tell Appellate Court — Last week, broadcasters filed a brief in the Ninth Circuit arguing that the Copyright Act’s compulsory cable license does not apply to internet retransmissions. On Wednesday, they were joined in support by a number of amici, including the Copyright Alliance, the International Center for Law & Economics and the Competitive Enterprise Institute, the National Association of Broadcasters, and the Washington Legal Foundation.

Bestselling Authors and Rights Organizations Support Authors Guild in Asking Supreme Court to Review Authors Guild v. Google Ruling — Amicus briefs supporting the Authors Guild cert petition also rolled in this week. The Authors Guild collects seven of them from a broad group of individuals and organizations.

Authors Guild v Google: The Fair Use Transformed — Speaking of the Authors Guild petition, be sure to check out my article at the Copyright Alliance site explaining why the Copyright Alliance filed an amicus brief supporting Supreme Court review.

Attacking the Notice-and-Takedown Strawman — Devlin Hartline makes a sharp observation regarding criticisms of certain proposals to improve the DMCA notice and takedown process, “supporters of notice-and-staydown today are actually advocating for what the EFF recognized to be reasonable over eight years ago.”

White Paper on Remixes, First Sale, and Statutory Damages — The Department of Commerce’s Internet Policy Task Force, led by the USPTO and NTIA, released its anticipated White Paper on copyright policy yesterday, highlighting a number of recommendations regarding the legal framework for remixes, first sale in the digital environment, and statutory damages.

The High Price of Free — The focus of this article is on web developers, but many of the points are relevant to other creative disciplines. “We know that not paying speakers and not covering speaker expenses causes events to become less diverse. The ability to give time, energy and professional skills free of charge is a privilege. It is a privilege that not everyone has to begin with, but that we can also lose as our responsibilities increase or as we start to lose the youthful ability to pull all-nighters. Perhaps we begin to realize how much that free work is taking us away from our families, friends, and hobbies; away from work that might improve our situation and enable us to save for the future.”

Some Pirate Sites Have Little Respect for their Users — Torrentfreak: “It’s a bitter pill but it needs to be said. While there are thousands that don’t, there are large numbers of pirate sites that fall way below the standards those who pay their bills deserve. Why some site operators sink to these levels isn’t always clear, but aggressive redirects, misleading advertising, fake virus warnings and malware are always unacceptable.”

Cosplay, Copyright and Fair Use — “Despite Public Knowledge’s attempt to have cosplayers believe otherwise (and support them and Star Athletica), cosplayers are not going to feel the brunt of any decision the Supreme Court makes on the designs of cheerleading uniforms. The highest court of the land is not ‘quite literally deciding the test by which the legal status of cosplay will be judged.'”

Torrenting the Oscars 2016 — John August, on a piracy group’s “apology-slash-justification” following a leak of 15 Oscar screeners: “So by leaking the movie before it was released, then backtracking, they’re pretty sure Miramax will make its money back because imaginary math is magic.”

A Primer on Oscar’s Sound Editing and Mixing Categories — Speaking of the upcoming Oscars (February 28), Variety explains two of the categories: sound editing and sound mixing. Contrary to common misconceptions, the former involves editing sounds while the latter involves mixing sounds.

Penguin Random House Ebooks Now Licensed for Perpetual Access — Robert C. Maier, a member of the American Library Association’s Digital Content Working Group, has this to say about the benefits of licensing, “Though we were in shock when HarperCollins instituted its 26-loan limit in 2011, that rental model is now recognized as an attractive alternative to high-priced perpetual access. At this point, the ideal arrangement would be the ability to license any title for perpetual access and to license the same title for a set number of circulations or a set time period, combining the library’s need to build its collection and to meet current popular demand.”

Endless Whack-A-Mole: Why Notice-and-Staydown Just Makes Sense — “A quick search of YouTube today shows that The Hateful Eight, which is still in theaters, is legitimately available for pre-order and is illicitly available to be streamed right now. One wonders why YouTube chooses to compete with itself, especially when it has the tool to prevent such unfair competition.”

It’s Wikipedia mythbuster time: 8 of the best on your 15th birthday — Here’s number 6: “But isn’t Wikipedia all about the democratisation of knowledge, and diversity? No, actually. Wikipedia, being a free resource, holds an inherent price advantage. It has no real competitors. As academic Heather Ford points out, ‘rather than this leading to an increase in the diversity of knowledge and the democratisation of expertise, the result has actually been greater consolidation in the number of knowledge sources considered authoritative.'”

Photographer Sues Twitter for Not Removing Photos Despite DMCA Requests — “The DMCA’s ‘Safe Harbor’ provision protects Internet companies from being responsible for the copyright infringements of their users, but only if they promptly and adequately respond to DMCA take down requests. If a company fails to honor DMCA requests, they could be held liable. Reilly says that’s what happened in this case. ‘Twitter had actual knowledge of the Infringing Uses,’ the lawsuit states. ‘Reilly provided notice to Twitter in compliance with the DMCA, and Twitter failed to expeditiously disable access to or remove the Infringing Uses.'”

No, Piracy Is Not the Sincerest Form of Flattery — Robert Atkinson observes, “while most people would recognize an uptick in criminal activity as a problem, perennial piracy apologists defiantly insist, against logic and evidence, that this is a sign of good fortune for Hollywood.”

In recent years, there have been some attempts to characterize copyright as a government subsidy. Tom Bell, for example, argues that copyrights should not be considered “property” but should instead be considered to belong “to a bestiary of modern, artificial, statutory privileges, such as welfare benefits, farm subsidies… and taxi medallions.” 1Tom W. Bell, Copyright Porn Trolls, Wasting Taxi Medallions, and the Propriety of “Property”, 18 Chap. L. Rev. 799, 813 (2015). Similar charges can be found by other advocates, calling copyright a “subsidy“, a “government subsidy“, or a “government-created subsidy.”

The reason for doing so is primarily rhetorical: at the very least, “subsidy” suggests a higher level of scrutiny than “property” or “right.” At most, anything labelled a government subsidy is treated with the highest level of skepticism. Adopting the label of “subsidy” thus replaces a lot of persuasive work that would otherwise need to be done.

But a Federal Circuit decision last month undermines the characterization of copyright as a government subsidy. The decision, In re Tam, involves trademarks, but its reasoning is both implicitly and explicitly applicable to copyright.

In re Tam

In re Tam looks at the First Amendment implications of federal trademark registration. The Federal Circuit begins by noting that trademarks both “protect the public so it may be confident that, in purchasing a product bearing a particular trade-mark which it favorably knows, it will get the product which it asks for and wants to get” and ensure that trademark holders can protect their “investment from . . . misappropriation by pirates and cheats.” Trademarks may be protected through state and common law. The Lanham Act was passed by Congress to provide a federal system of registering and protecting trademarks.

Federal registration of a trademark by a markholder is optional but confers important substantive and procedural rights. These rights include:

  • Exclusive nationwide use of the mark (common law trademark is limited to the geographic area where the mark is actually used)
  • A presumption of validity, and incontestability after five years of consecutive post-registration use
  • Ability to sue in federal court for trademark infringement
  • Ability to recover treble damages for willful infringement
  • Ability to obtain assistance of US Customs and Border Protection to restrict importation of counterfeit goods
  • Qualification for a simplified process for obtaining protection of works in foreign countries that are members of the Paris Convention
  • A complete defense to state or common law claims of trademark dilution.

Section 2(a) of the Lanham Act, the section at issue here, bars registration of marks that, among other things, “disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.”

In 2011, Simon Shiao Tam filed an application to register a trademark in the name of his band, “The Slants”, an “Asian-American dance rock band.” A USPTO examiner denied the registration, finding it disparaging. The decision was affirmed by the Trademark Trial and Appeal Board and the Federal Circuit, but the Federal Circuit sua sponte ordered a rehearing en banc to consider whether refusal of disparaging trademarks implicated the First Amendment.

The en banc panel first held that Section 2(a) denies important legal rights to private speech based on its content. It is thus presumptively invalid and can only be justified if the government can prove that it is “narrowly tailored to serve compelling state interests.” The court states that “no argument has been made that the measure survives such scrutiny.”

The government also argued that Section 2(a) does not implicate the First Amendment at all, asserting that denial of trademark registration does not prohibit speech, that trademark registration is government speech, or that trademark registration is a government subsidy. The Federal Circuit rejected all of these arguments.

The third of these arguments is most relevant to the discussion above. As the Federal Circuit explains, the key distinction here is between Congress’s ability to direct government spending and a constitutional prohibition against denying a “benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech.” The Constitution’s Spending Clause, after all, provides Congress discretion over the ability to tax and spend for the general welfare, which includes “‘the authority to impose limits on the use of such funds to ensure they are used in the manner Congress intends,’ even when  these limits exclude protected speech or other constitutionally protected conduct.” However, this authority does not permit Congress “to attach ‘conditions that seek to leverage funding to regulate speech outside the contours of the program itself.'” This is admittedly not a clear distinction, but in essence, “Congress cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise.”

But the Federal Circuit doesn’t reach this distinction because it rejects the government’s threshold argument, saying, “Trademark registration does not implicate Congress’s power to spend or to control use of government property. Trademark registration is not a subsidy.” It rejects all of the government’s counterarguments, observing that “The restriction on the registration of disparaging marks bears no relation to the objectives, goals, or purpose of the federal trademark registration program.”

The court next underscores the importance of its holding.

Were we to accept the government’s argument that trademark registration is a government subsidy and that therefore the government is free to restrict speech within the confines of the trademark program, it would expand the “subsidy” exception to swallow nearly all government regulation.

Characterizing something as a subsidy invites all sorts of government interference, including that which might regulate speech.

Application to copyright law

The holding in In re Tam applies just as much to copyright as it does to trademark.

In the discussion that follows its rejection of the government’s subsidy argument, the court observes the resemblance between trademark registration and copyright registration. It says that under the logic of the government’s approach, Congress could similarly prohibit the registration of copyrighted works which contain racial slurs or religious insults. “This idea—that the government can control speech by denying the benefits of copyright registration to disfavored speech—is anathema to the First Amendment.” The court notes that the government agrees that copyright registration is protected by the First Amendment, “But the government has advanced no principled reason to treat trademark registration differently than copyright registration for present purposes.”

The Federal Circuit is explicit that there is no daylight between its trademark holding and one that would involve copyright. But the relationship between the two does not stop there. In fact, comparisons to copyright and copyright registration are pervasive throughout the court’s opinion. For example, the court responds to the government’s argument that “accoutrements of registration—such as the registrant’s right to attach the ® symbol to the registered mark, the mark’s placement on the Principal Register, and the issuance of a certificate of registration—amount to government speech.” It says if that was the case, then the same would be true for copyright registration, since that has identical accoutrements. The court observes that “the government would be free, under this logic, to prohibit the copyright registration of any work deemed immoral, scandalous, or disparaging to others.” It concludes that “This sort of censorship is not consistent with the First Amendment or government speech jurisprudence.”

It again draws parallels to copyright when it rejects the government’s argument that federal funding of the Patent and Trademark Office brings trademark registration within the ambit of the Spending Clause, noting that the Copyright Office likewise receives appropriations, but copyright registration is not a subsidy.

So while the Federal Circuit’s holding is about trademark, its reasoning clearly and directly extends to copyright. And its conclusion is clear: not only is copyright not a government subsidy, but to mischaracterize it as such would undermine free speech protections.

References   [ + ]

1. Tom W. Bell, Copyright Porn Trolls, Wasting Taxi Medallions, and the Propriety of “Property”, 18 Chap. L. Rev. 799, 813 (2015).

On Piracy and Promotion — David Newhoff unpacks the numerous fallacies and inconsistencies contained in the argument that piracy is good promotion for creative works.

Piracy apologists’ convenient lie (of omission) that Hollywood profits means piracy doesn’t matter — On that same topic, Vox Indie’s Ellen Seidler looks at the canard that a rise in box office revenues proves that piracy doesn’t matter. For example, says Seidler, one of the effects of piracy is that fewer films are being made. “The Hollywood films that are being made are those that are sure bets to overcome digital theft and still make money. In 2015, the top 5 films made 20% of the revenue.”

Judge Allows Graffiti Artist’s Lawsuit Over Katy Perry’s Met Gala Dress — Over in the courts, a California judge denied a motion to dismiss a claim against the designer of a dress worn by Katy Perry that allegedly copied a design from street artist Rime. Among the claims that survived is one for copyright infringement and one for removal of copyright management information.

Twitter sued for copyright infringement & for ignoring DMCA takedown requests — A photographer has sued Twitter after the service failed to remove 50 of the 56 allegedly infringing works identified in DMCA takedown notices that were sent.

Why Music Makers Are the Real American Innovators — Musician Blake Morgan pens this stirring call to arms. “We know all about American innovation. Rock & Roll is an American innovation. Hip-Hop is an American innovation. Jazz is an American innovation. Blues, Country, Gospel, Bluegrass, each of these — and so many others — are distinct American innovations. Music is one of the things America still makes that the world still wants. The people who make that music should be paid fairly for their work.”

Why we fear Google — In this open letter to Eric Schmidt, Mathias Döpfner, CEO of Axel Springer SE, explains why Google’s global monopoly on user data and behavior is so chilling.

Major piracy group warns games may be crack-proof in two years — Reports from a number of groups who devote their time to circumventing copying restrictions on newly released games show that the task is getting more and more difficult. This underscores the importance of anti-circumvention laws to the software industry.

Richard Russo on Authors Guild v. Google — On December 31, the Authors Guild filed a petition to the Supreme Court, asking it to review the Second Circuit’s decision involving the Google Books Project. Here, author Richard Russo shares his thoughts. “It’s completely disingenuous for [Google] to argue that their behavior is selfless when it leads directly to an improved bottom line and increases their value as a corporation. When libraries loan books, the democracy benefits, not the library. Google may be larger than many public institutions and wealthier than some nations, but that doesn’t mean they are acting in the public interest simply because they claim to be and can demonstrate some benefit to the public sector.”

Industry efforts to fight digital piracy complement government action — “While these voluntary efforts have been largely successful, more can be done. For example, the private sector still needs a stronger framework for payment processors to cut off pirate sites from their payment networks. And Internet domain name registrars, together with content creators and others, should come together to develop better methods for enforcing terms of service that prohibit criminal groups from using websites that promote the theft of digital content. Finally, the private sector should continue to improve industry efforts to demote search results that involve piracy.”

Why Canada has nothing to fear over TPP and Intellectual Property — Canadian attorney Barry Sookman responds to critics of the intellectual property provisions in the recently concluded Trans-Pacific Partnership. The twelve nations making up the TPP hope to sign the deal in early February.

What can we expect for US copyright policy in 2016?

As I did last year, I’d like to take a brief look at what developments we may see in the copyright policy arena over the next twelve months.

House Judiciary Committee copyright review

Last year the House Judiciary Committee brought the first phase of its copyright review process to a close. Over the course of two years, the Committee had held a series of twenty hearings, featuring 100 witnesses, covering a broad array of topics. Chairman Goodlatte announced the next step would consist of meeting one on one with stakeholders to discuss their priorities and positions regarding copyright law. The Committee also traveled to Nashville, Silicon Valley, and Los Angeles as part of a “listening tour” to hear from different parties.

The ultimate outcome of the review process is still undetermined. A number of bills have been introduced addressing issues such as music licensing (the Fair Play Fair Pay Act and Songwriter Equity Act), resale royalties (American Royalties Too Act), and embedded software (You Own Devices Act). None of these bills have advanced since being introduced.

US Patent and Trademark Office

This year will likely see the release of an Internet Policy Task Force’s (IPTF) White Paper on copyright policy in the digital era. In 2013, the IPTF—a Department of Commerce task force composed of Commerce bureaus including the USPTO’s Office of Policy and International Affairs and the National Telecommunications and Information Administration—released a Green Paper on Copyright Policy, Creativity, and Innovation in the Digital Economy that examined the current legal framework related to copyright and the internet. According to remarks by PTO Director Michelle Lee, the forthcoming White Paper will contain policy recommendations on three issues: “The appropriate calibration of statutory damages; [t]he application of the First Sale doctrine to digital transmissions; and the legal status of remixes.”

Copyright Office

The Copyright Office looks like it will be keeping busy this year. At the end of 2015, the Copyright Office dropped not one but three requests for public comment on studies it is initiating. The most recent of these will look at the impact and effectiveness of the safe harbor provisions contained in Section 512 (the DMCA safe harbors). As Register Pallante observed in her testimony at the final copyright review hearing in April, “In the nearly twenty years since Congress enacted the DMCA, courts have stepped in to fill perceived gaps in the statutory framework, often interpreting provisions in ways that some believe run counter to the very balance that the DMCA sought to achieve. … The current online environment is vastly changed from the bulletin-board era in which Congress enacted the DMCA in 1998.”

The other two studies are closely related, looking at software-enabled consumer products and Section 1201 of the Copyright Act (which prohibits the circumvention of technological protection measures). As more and more everyday consumer devices—everything from toasters to tractors—include copyrighted software, a host of issues regarding the “impact of existing copyright law on innovation and consumer uses” are emerging. The Office is engaging in a separate Section 1201 study to examine more closely the anti-circumvention provisions and triennial rulemaking process for exemptions to those provisions.

The Office is collecting public input in all three studies throughout the first several months of 2016. It has stated plans for public meetings for each of these studies following the comment period, so we may see one or more of those later in the year. The software-enabled consumer products study was initiated as a result of a request from Senators Grassley and Leahy who asked that it be completed by December 15, 2016.

Still outstanding are reports on mass digitization, visual works, and making available; perhaps we’ll see one or more of these issued in 2016.

Copyright Office modernization

The operation of the Copyright Office itself promises to remain an active area of development in 2016. The department’s resources and functions—most notably its IT and technology—have been the focus of increasing attention. In the past year and a half, the Office’s operations have been discussed at an oversight hearing, a copyright review hearing, and a House Admin hearing. Last year, the issue was also explored in House and Senate appropriations hearings along with a GAO report. The Office itself most recently underscored the need for modernization in its 2016-2020 Strategic Plan.

In December, Representatives Marino, Chu, and Comstock introduced legislation (the Copyright Office for the Digital Economy, or CODE, Act) that would address the significant structural challenges facing the Office by providing it with more autonomy over its budget and technology. It is likely we will see additional Copyright Office modernization developments over the next twelve months.

Library of Congress

Given that the US Copyright Office is a department within the Library of Congress and acts under its direction and supervision, who the next head of the Library will be may have copyright policy implications.

The most recent Librarian, Dr. James Billington, announced on June 10 he would retire at the end of the year. He subsequently stepped down three months early, on September 30, and deputy Librarian David Mao has been serving as Acting Librarian since then. Although names of some potential candidates have floated in the press, no one has been nominated yet.

The Administration would presumably want to have a Librarian nominated and confirmed before the end of the President’s term next January, so it’s reasonable to expect a new Librarian some time in 2016, but time is running short.

Trans-Pacific Partnership

In October, trade ministers from the twelve Trans-Pacific Partnership (TPP) nations announced the conclusion of negotiations, paving the way for the major trade agreement to go into effect. The US Trade Representative released the full text of the agreement in November, which covers a broad array of issues, including standards for intellectual property protections like copyright.

Conclusion of the agreement triggers a process ultimately leading to adoption. Over 2016, we will see an International Trade Commission analysis of the economic impact of the TPP, as well as any draft legislation required for implementation (the TPP’s copyright provisions should not require any legislative changes since they are consistent with US law). Though the agreement is a top priority for the Administration, it remains to be seen, whether the agreement will make it in front of Congress before the end of the year.

In closing, I’d note that the question of what we can expect in 2016 cannot help but be shaped by the November Presidential election. Though copyright has not historically been an election (or even partisan) issue, the focus on the contest will no doubt shape what policymakers do (or don’t do) in the copyright space. One immediate consequence of the election is an abbreviated Congressional calendar; the House will be in session just 111 days this year, the least amount of workdays since 2006.

In October, Judge Leval wrote the majority opinion affirming a finding of fair use in Authors Guild v. Google, based largely on his conception of fair use as hinging on transformation, a conception he himself first laid out over twenty years ago in Toward a Fair Use Standard. The Supreme Court’s adoption of that conception in 1992—it cited to Leval’s article over a dozen times in its Campbell v. Acuff-Rose opinion—is affirmation enough, but the quickness of courts to turn to the theory today in order to adjudicate cutting edge copyright issues definitely validates it.

Judge Leval is clear about the foundational principles that have animated his thinking. “The copyright is not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations,” he wrote in his 1992 piece. “It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. This utilitarian goal is achieved by permitting authors to reap the rewards of their creative efforts.”

Leval’s view of copyright is not new. In 1841, Thomas Babington Macaulay addressed the British House of Commons, saying,

The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one; it is a tax on one of the most innocent and most salutary of human pleasures; and never let us forget, that a tax on innocent pleasures is a premium on vicious pleasures. I admit, however, the necessity of giving a bounty to genius and learning. In order to give such a bounty, I willingly submit even to this severe and burdensome tax. Nay, I am ready to increase the tax, if it can be shown that by so doing I should proportionally increase the bounty.

This utilitarian justification of copyright seems to predominate, at the very least, academic scholarship on the topic these days. We are indeed told by some that the Constitution itself dictates that our copyright law rests solely on utilitarian grounds. 1See, e.g., Tom Bell, Intellectual Privilege: Copyright, Common Law, and the Common Good, pg 60 (Mercatus Center, 2014); Association of Research Libraries, “Copyright Timeline: A History of Copyright in the United States“; William Patry, “The Natural Rights Issue“, Patry Copyright Blog, Jan. 18, 2008.

But not everyone agrees with this view. In Constitutional Foundations of Intellectual Property: A Natural Rights Perspective (Carolina Academic Press), Randolph May and Seth Cooper argue that the drafters of the Constitution understood copyright as grounded in natural rights. 2Disclaimer: I received a courtesy copy of the book from Carolina Academic Press. They and early American jurists and legislators sought to protect the just claims that creators and innovators had in the products of their labor.

The book grew out of a series of essays May and Cooper wrote through the Free State Foundation. In it, May and Cooper argue that the Founders viewed copyright (and patent) as grounded in natural rights, and this is reflected in the Constitution. The argument proceeds from first principles that May and Cooper assert in the introduction. The first of these is that “every person has a natural right to the fruits of his or her own labor”—including the product of a person’s creative activity. The second is that the protection of “every person’s right to the fruits of his or her own labors through laws protecting private property” is one of the primary purposes of government. They acknowledge at the outset that a natural rights foundation for intellectual property does not necessarily mean such rights in civil society last indefinitely—”property law systems must be considered in the contexts of social institutions adjusted to various circumstances, including historical precedents, technological developments, plausibility of enforceability, and costs relative to benefits.” This is an important point almost universally overlooked by opponents of a natural rights view of copyright and intellectual property.

May and Cooper also argue that these principles are reflected in the US Constitution, including the Constitution’s Copyright Clause, which authorizes Congress to enact intellectual property legislation. They draw from the intellectual influences on the Founding Fathers—most notably John Locke and William Blackstone—along with contemporary writings of the Constitutional Framers. Chief among these are the Federalist Papers. Though the authors devote most of their attention to examining Federalist 43, where Madison describes the Copyright Clause specifically, they look at the entire set of essays to sketch a more comprehensive framework of Constitutional thought and show how intellectual property fits into that.

Pursuant to the Constitution’s Copyright Clause, the First Congress passed the 1790 Copyright Act. May and Cooper emphasize the importance of this legislation—noting that this Congress is sometimes called the “Constitutional Congress”, they write that “the proceedings of the First Congress inform our understanding of the underlying logic and significance of intellectual property (IP) rights in the American constitutional order.”

The book turns next to addressing common critiques of the natural rights view of copyright. In one chapter, they take a closer look at Thomas Jefferson’s views on intellectual property. In particular, a few scattered, brief mentions of skepticism toward IP expressed by Jefferson in private letters are often held up by critics as much more than they are, creating a “Jeffersonian mythology” in the IP world. May and Cooper respond that Jefferson’s influence on the actual Constitution, including the Copyright Clause, was peripheral at best—he was in Paris during the 1787 Philadelphia Convention. In addition, relying solely on those sentiments he expressed exaggerates his opposition to intellectual property rights in general. Jefferson, they observe, never publicly attacked patents or copyrights during his Presidency. Indeed, as president, he signed the 1802 Copyright Act, which expanded the scope of protection.

In another, they demonstrate that “intellectual property is readily conformable to the key components of the rule of law and American constitutionalism, such as according due process and equal protection and protecting vested rights.”

The book is rounded out by taking a look beyond the Founding period. May and Cooper examine Antebellum jurisprudence, which, they state, reaffirms the foundations of intellectual property rights they’ve describe above. They find these principles reflected in legal treatises such as Joseph Story’s 1830 Commentaries on the Constitution, and Chancellor James Kent’s Commentaries on American Law. 3They could have added George Ticknor Curtis’s 1847 landmark Treatise on the Law of Copyright, which explicitly embraced a natural rights approach to literary property. They look at cases like Wheaton v. Peters, which, though it rejected the existence of a federal common law copyright, still relied on the justices shared recognition “that copyright is a property right rooted in a person’s right to the fruits of his or her labor.” And finally, they see these principles embraced in a number of legislative revisions to copyright law during the time between the War of 1812 and the Civil War.

Abraham Lincoln is brought in to conclude the book. May and Cooper observe that the Founders’ understanding of natural rights and Constitutional thought was embraced by Lincoln during the Civil War and Reconstruction era. They find resonance between the natural rights logic of intellectual property and the logic of “free labor” that underpinned antislavery arguments. Lincoln advocated for both—indeed, he himself was awarded a patent before becoming President of the US.

The natural rights approach that May and Cooper take has not disappeared entirely from copyright discourse these days. One hears hints of it in court opinions and policy statements, and a few intrepid academics write from such a perspective, including, for example, Adam Mossoff and Mark Schultz, who are mentioned in the book’s acknowledgements. But May and Cooper have written a thorough recitation of how copyright is justified under a natural rights theory and how that justification is reflected in US law—and a project of such a scope is increasingly rare.

Much of the history traced through the book will be familiar to US copyright scholars, though I found the discussion of the Antebellum and Reconstruction eras to cover new ground. If I had to identify a drawback, it may be that the book suffers from a bit of repetition. As noted above, it grew out of a series of previously written essays and could have benefitted from a bit more structural cohesion and a bit less redundancy. Nevertheless, May and Cooper have contributed an excellent primer on the natural rights justification for intellectual property rights in the US and its reflection in the Constitution and early American jurisprudence.

References   [ + ]

1. See, e.g., Tom Bell, Intellectual Privilege: Copyright, Common Law, and the Common Good, pg 60 (Mercatus Center, 2014); Association of Research Libraries, “Copyright Timeline: A History of Copyright in the United States“; William Patry, “The Natural Rights Issue“, Patry Copyright Blog, Jan. 18, 2008.
2. Disclaimer: I received a courtesy copy of the book from Carolina Academic Press.
3. They could have added George Ticknor Curtis’s 1847 landmark Treatise on the Law of Copyright, which explicitly embraced a natural rights approach to literary property.