Doesn’t ALL property last for a limited time?

March 18, 2013 · · 4 comments

Despite the “robust history” of treating copyright as property,1 “property talk” still makes some copyright skeptics nervous.

Most recently, calls for regressive copyright changes have tried to recast copyright protection as more like government regulation than property. In fact, in Copyright Unbalanced: From Incentive to Excess, released last November by the Mercatus Center, law professor Tom Bell appears to argue that this in and of itself is among the necessary changes to copyright law. One of his “Five Reforms for Copyright Law” is to “Reconceive ‘IP’ ['Intellectual Property'] as ‘Intellectual Privilege‘.” Forget about substance, the problem with copyright is semantics.

But too often, arguments against copyright as property are pushed through on shaky grounds. Recently, legal scholar Adam Mossoff responded to one common claim — one that states that “’traditional property rights in land’ is based in inductive, ground-up ‘common law court decisions,’ but that IP rights are top-down, artificial statutory entitlements.” A complete myth, says Mossoff. Traditional property rights in land were frequently throughout history created and extended through statute rather than common law courts.

I’d like to look at another common claim.

It’s just different

In Copyright Unbalanced, editor Jerry Brito begins his chapter by saying copyright is “a very different kind of property” than “traditional property.” In support of this claim, Brito points to the respective durations of each. As Brito explains, the “copyright clause allows Congress to establish copyrights for ‘limited times’ only. This means that unlike traditional property, copyrights must cease to belong to their owners at a certain point.”2 Brito is not alone in this argument; copyright skeptics have long made this argument. Lawrence Lessig, for example, perhaps the godfather of copyright skepticism, says in his 2006 book Code that the difference between copyright and what he calls “ordinary property” is recognized in the Constitution’s “limited times” language:

[N]ote the special temporality of this right: “for limited Times.” The Constitution does not allow Congress to grant authors and inventors permanent exclusive rights to their writings and discoveries, only limited rights… It does not give Congress the power to give them a perpetual “property” in their writings and discoveries, only an exclusive right over them for a limited time.

The Constitution’s protection for intellectual property then is fundamentally different from its protection of ordinary property.

But is it correct that copyright is fundamentally unlike “traditional” or “ordinary” property (whatever that is) because it has a cut-off date? Setting aside for now the fact that the Copyright Clause in the U.S. Constitution only applies to the United States — while every other country with copyright laws does limit its duration, I’m not aware that this limited duration is a constitutional requirement outside the U.S. Under Brito’s logic, it would apparently be easier to argue that copyright is property in, say, South Korea.3

Or is it?

If we consider property as a relationship between person and thing, than it should be easy to see that all property rights are limited in time. Until scientists discover a cure for death, property is limited in time to the life of its owner. After you die, you don’t own anything anymore; that specific relationship between person and thing is terminated. Who owns your property after you die is settled by — and this is important — positive law.

Because, if we’re talking about common law or natural law, as those who often advance such arguments are especially fond of talking about, the transfer of ownership upon death is far different. Nowadays, in very general terms, when you die, your property is disposed in the following manner: first, according to your will; next, if you have no will, then to your heirs according to the relevant state law; finally, if you have no heirs, then your property escheats to the state.

This is how William Blackstone explained the law in his Commentaries on the Laws of England. Said Blackstone:

The most universal and effectual way, of abandoning property, is by the death of the occupant; when, both the actual possession and intention of keeping possession ceasing, the property, which is founded upon such possession and intention, ought also to cease of course. For, naturally speaking, the instant a man ceases to be, he ceases to have any dominion: else, if he had a right to dispose of his acquisitions one moment beyond his life, he would also have a right to direct their disposal for a million of ages after him; which would be highly absurd and inconvenient. All property must therefore cease upon death, considering men as absolute individuals, and unconnected with civil society: for then, by the principles before established, the next immediate occupant would acquire a right in all that the deceased possessed.4

The “permanence” of property developed later, through civil law; first, through the right of inheritance, and later through the right to dispose of property through testament. Blackstone is clear: heirs had no natural right to inherit their parents’ property, and property owners had no natural right to “direct the succession of his property after his own decease.” Under natural law, all property lasts for “limited times”, becoming common property (part of the public domain) upon the death of the possessor. It is only through “the positive law of society” that a stable system of inheritance is created.

Blackstone’s Commentaries were hugely influential when they were published, referred to heavily by the drafters of the U.S. Constitution. While the bulk of public mentions of copyright during that time referred to it as property or literary property, I’m not aware of any explicit discussion of the “limited times” language in the Constitution and how it relates to copyright as property from the drafters.

However, there are roughly contemporary accounts of copyright that do recognize that its “limited times” do not take it outside the scope of “property.” In 1831, Congressman Gulian Verplanck delivered an address on literary property following the passing of the Copyright Act of 1831 — the first major general revision to U.S. copyright law. Verplanck argued that copyright was equivalent to other forms of property, how the “right of property in the productions of intellectual labour was as much founded in natural justice as the right of property in the productions of corporeal labour.” Said Verplanck:

Such too was the doctrine of the framers of our own constitution, as I maintained was quite evident from the peculiarity of their language on this point. They had not used any word, which would imply that they thought “to give rights to authors and inventors” but had authorized congress “to promote the progress of science and the useful arts by securing to authors or inventors the exclusive rights to their writings or inventions.” They clearly did not think they were enabling congress to give these rights, but presuming them to exist, they provided for protecting them by a legal remedy. The limitation of the term of legal exclusive enjoyment and protection was indeed the effect of positive law. But this limitation was precisely of the same nature with the terms of prescription of property and limitation of actions in all legal systems, which may be longer or shorter according to views of public policy, the natural and moral rights of property remaining unchanged [Emphasis added].5

Far from representing a fundamental break from “normal” property, the U.S. Constitution’s “limited times” language for copyrights remains consonant with how property has been conceived over centuries.

Footnotes

  1. Justin Hughes, Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 Southern California Law Review 993, 1004 (2006). [↩]
  2. Why Conservatives and Libertarians Should be Skeptical of Congress’s Copyright Regime, Copyright Unbalanced: From Incentive to Excess, ch. 1 (Mercatus Center 2012). [↩]
  3. Or, more interestingly, if, but for 17 U.S.C. § 301, copyright would be considered property in a state but not the federal government. Prior to that section, which went into effect in 1978 and preempts any state laws that provide protections equivalent to those under the U.S. Copyright Act, a dual system of federal and state copyright existed. Goldstein v. California, 412 US 546, 560 (1973). [↩]
  4. Book 2, Chapter 1. [↩]
  5. Discourses and addresses on subjects of American history, arts, and literature, pg. 221 (1833). [↩]
Posted in: Copyright history · 4 comments

Share: Reddit Google+ LinkedIn

“Manifestly ill-founded”: Pirate Bay Free Speech Argument Tossed

March 14, 2013 · · 3 comments

Last year, various individuals connected with the Pirate Bay reacted strongly to the refusal of the Swedish Supreme Court to hear their appeal in a copyright case against them. Peter Sunde exclaimed that the site, one of the most notorious and unapologetic facilitators of infringement in recent memory, “has been one of the most important movements in Sweden for freedom of speech” and those involved in running the site “have been mentioned as possible winners of the nobel peace prize.”

However, yesterday a unanimous chamber at the European Court of Human Rights held that the massive infringement the site enabled justified any interference with the site founders’ free expression rights. The Court, in fact, said that the founders’ appeal on free speech grounds was “manifestly ill-founded.”

Peter Sunde, of Finland, and Frederik Neij, of Sweden, were charged in 2008 with complicity to commit crimes in violation of Sweden’s Copyright Act for their role in operating the Pirate Bay. The District Court found both guilty in April 2009 and handed down a sentence that included prison time and fines. Both appealed the decision, and though the verdict was upheld, the appellate court reduced Neij’s sentence. This decision, in turn, was appealed to Sweden’s Supreme Court. The Court refused to hear the appeal in February 2012.

And so, Sunde and Neij appealed to the European Court of Human Rights, a supra-national court that has jurisdiction to hear cases where a violation of human rights, as defined by the European Convention on Human Rights, by a member nation are alleged. The Court issued its decision in Neij and Sunde Kolmisoppi v. Sweden (application no. 40397/12) yesterday.

The Pirate Bay founders claimed that their convictions interfered with their right to free expression. That right is enshrined in Article 10 of the European Convention on Human Rights, which states:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

At the outset, the Court did conclude that the Pirate Bay founders’ actions taken to run the site were an exercise of their right to free expression, and the subsequent conviction did interfere with that right. But that is only the beginning of the Court’s inquiry. It next turned to a three-pronged question: (1) was the interference prescribed by law, (2) was there a legitimate aim to the interference, and (3) was the interference a “necessity in a democratic society.” The first two parts of this question were easy to answer. The convictions were based on Sweden’s Copyright Act and Penal Code, and were in pursuit of the legitimate aim of protecting plaintiff’s copyright — i.e., protecting the rights of others and preventing crime.

The final prong, perhaps unsurprisingly, generated the most discussion. As the Court said, “The test of whether an interference was necessary in a democratic society cannot be applied in absolute terms. On the contrary, the Court must take into account various factors, such as the nature of the competing interests involved and the degree to which those interests require protection in the circumstances of the case. In the present case, the Court is called upon to weigh, on the one hand, the interest of the applicants to facilitate the sharing of the information in question and, on the other, the interest in protecting the rights of the copyright-holders.”

How the Court characterized the interests of copyright-holders is, in my opinion, the most striking part of the decision. The Court stressed “that intellectual property benefits from the protection afforded by Article 1 of Protocol No. 1″ to the European Convention on Human Rights. This article states:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

That is, under the European Court on Human Rights, intellectual property rights are treated as property rights. This wasn’t a new holding; the Court cited to a 2007 case that agreed that intellectual property “incontestably” enjoys the same protections as personal and real property under the Convention.1

The Court’s case law is consistent with the conception of copyright and free speech in the U.S. that I have previously suggested accounts for their unquestioned co-existence from the founding of the country and nearly two centuries afterward. Copyright was considered property. Remedies to protect property were generally not seen as infringing freedom of speech. Just as the First Amendment does not typically trump trespass law, it does not typically trump copyright law.2 This conception has, of course, been assailed in recent decades by the academy3 and certain civil society groups (and, lately, from a subset of libertarians) — all of which likely helped convinced the Pirate Bay founders that they had a case here.

Not only are intellectual property rights treated as property rights, but, as the Court reiterates, States have an affirmative duty to protect them. That means in certain cases, it is sometimes appropriate to have criminal enforcement in addition to civil enforcement. The Court concluded that this was one such case. It said the Swedish government had “weighty reasons for the restriction of the applicants’ freedom of expression [Emphasis added].”

This, along with the Court’s holding that “the prison sentence and award of damages cannot be regarded as disproportionate”, led to its ultimate conclusion that the interference the Pirate Bay founders’ conviction caused with their free expression rights was ”necessary in a democratic society.”

Footnotes

  1. Anheuser-Busch v. Portugal [GC], no. 73049/01, § 47, ECHR 2007‑I. [↩]
  2. For a modern take on this comparison between copyright, the First Amendment, and trespass, see Lillian BeVier, Copyright, Trespass and the First Amendment: An Institutional Perspective, 21 Soc. Phil. & Pol’y 104 (2004). [↩]
  3. For a lengthy yet nonexhaustive list, see this footnote from Copyright and Censorship. [↩]
Posted in: Copyright news · 3 comments

Share: Reddit Google+ LinkedIn

Copyright and the Takings Clause

December 10, 2012 · · 11 comments

This past Thursday, the Cato Institute held a forum called Copyright Unbalanced: From Incentive to Excess to discuss the current state of copyright law and issues raised by the Institute’s recently released book with the same title. The panel discussion featured the book’s editor, Jerry Brito of the Mercatus Center, Mitch Glazier of the RIAA, and one of the book’s contributors, law professor Tom Bell.

Much could be said concerning the event and book. I’d like to focus in on one specific point.

Tom Bell says in the book that “to change the way that people think about copyright, we have to change the way they talk about it.” To do so, he proposes banishing the conception of copyright as “property” and instead consider it a “mere privilege”, capable of all sorts of capricious intervention by the government. Bell argues that copyrights do not “deserve” to be called property. What accounts for all this property-talk throughout history?1 According to Bell, “bad philosophy.”

He next provides several examples that purport to distinguish a copyright from other forms of property. Today I want to focus on one specific example Bell provides to distinguish copyright from more deserving forms of property: that “copyright does not qualify for just compensation under the Fifth Amendment’s takings clause.” Bell is correct in noting that “the exact question remains as yet unlitigated,” but how does the rest of his analysis stack up?

Does the Takings Clause Apply to Copyright?

The “Takings Clause” of the Fifth Amendment prohibits Congress (and the States through the Fourteenth Amendment)2 from taking private property for public use, without just compensation. Literally, the government cannot take private property, unless it is for public use, and the government provides just compensation. The clause has been broadened over time: today, it applies not only to an actual taking of legal title to property, but also to regulations that impact the economic use of property in such a way that they can be characterized as a “taking.”3 But, on its face, the clause requires some interest in “property.” It is here Bell makes his argument: if copyright is, indeed, “property”, then the government should be limited by the Fifth Amendment in what it could do.

One could look toward the Supreme Court to see if it is. Indeed, in 1998, four Supreme Court Justices stated that “The ‘private property’ upon which the [Takings] Clause traditionally has focused is a specific interest in physical or intellectual property.” [Emphasis added.]4

That may not be satisfactory enough, since it, though a descriptive statement, is not binding precedent.

We can look instead to another case, where a majority held that trade secrets are property and subject to the Takings Clause (citing, among others, William Blackstone and John Locke):

This general perception of trade secrets as property is consonant with a notion of “property” that extends beyond land and tangible goods and includes the products of an individual’s “labour and invention.”

Although this Court never has squarely addressed the question whether a person can have a property interest in a trade secret, which is admittedly intangible, the Court has found other kinds of intangible interests to be property for purposes of the Fifth Amendment’s Taking Clause. That intangible property rights protected by state law are deserving of the protection of the Taking Clause has long been implicit in the thinking of this Court:

“It is conceivable that [the term `property' in the Taking Clause] was used in its vulgar and untechnical sense of the physical thing with respect to which the citizen exercises rights recognized by law. On the other hand, it may have been employed in a more accurate sense to denote the group of rights inhering in the citizen’s relation to the physical thing, as the right to possess, use and dispose of it. In point of fact, the construction given the phrase has been the latter.”5

The Court later adds:

The right to exclude others is generally “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” With respect to a trade secret, the right to exclude others is central to the very definition of the property interest. Once the data that constitute a trade secret are disclosed to others, or others are allowed to use those data, the holder of the trade secret has lost his property interest in the data. That the data retain usefulness for Monsanto even after they are disclosed — for example, as bases from which to develop new products or refine old products, as marketing and advertising tools, or as information necessary to obtain registration in foreign countries — is irrelevant to the determination of the economic impact of the EPA action on Monsanto’s property right. The economic value of that property right lies in the competitive advantage over others that Monsanto enjoys by virtue of its exclusive access to the data, and disclosure or use by others of the data would destroy that competitive edge.

Patents and copyrights would also be included in this analysis since they enjoy at least as much status (if not more) as property than trade secrets.6

Zoltek v US

Bell, however, relies on Zoltek v US, a 2006 Federal Circuit Court decision, as his sole support for the claim that “copyright does not qualify for just compensation under the Fifth Amendment’s takings clause.”7

But I don’t think the case suggests what Bell says it suggests. In Zoltek, the Federal Circuit rejected the Takings Clause claim of a patent owner whose patent was infringed by the US Government. Not because patents are not Fifth Amendment “property”, but because patent owners already have a remedy against the United States for infringement (the same holds true for copyright infringement).8

The court did not expand its holding past the issue of infringement by the federal government — that is, one cannot draw from the court’s decision the general case, that any interference in a patent or copyright is not subject to the Takings Clause, from the specific case, that infringement by the United States involves a “taking.” (It’s also worth noting that the court’s decision drew a vigorous dissent both in its original decision and in its denial for rehearing.)9

Contrary Case Law

Much more fatal to Bell’s claim that a solitary Circuit Court decision “strongly suggests” copyright is not subject to the Takings Clause is the existence of decisions from five other Circuit Courts that suggest otherwise.

In a 1989 case, the First Circuit was confronted with a situation similar to the one in Zoltek, except here the alleged infringement was done by the state of Massachusetts rather than the federal government, raising the issue of sovereign immunity under the Eleventh Amendment.10 Ultimately, the court held that the Copyright Act did not abrogate sovereign immunity for copyright infringement, but noted that not all was lost for the copyright owner. Massachusetts had separate statutes that allowed tort claims against the state and claims for compensation when private property is confiscated. Said the court:

The statutory scheme manifests a recognition that where private property is taken for public use, a constitutional right to just compensation attaches. Since a copyright is property, [the plaintiff] may very well be able to sue in state court on a state-law claim for essentially the harm that she contends the Commonwealth has perpetrated. And if she exhausts State remedies and establishes that the Massachusetts legal system affords her no just compensation for the wrongful confiscation of her property, the Takings Clause of the federal Constitution might at that point enable her to pursue a damage remedy in federal court.11

A few years prior, the Second Circuit was confronted with a dispute over the validity of a work-for-hire contract.12 The agreement was entered into right before the Copyright Act of 1976 went into effect, while the work at issue, and the subsequent dispute, did not arise until shortly after the Act became law. The Copyright Act of 1976 changed the rules governing the work-for-hire doctrine, and under the circumstances of this case, the difference between the old rule and the new rule would result in a different outcome.

Said the court:

Although the language of the Act, its legislative history and rules of statutory interpretation are sufficient answers to Roth’s claim, we note, en passant, adoption of her interpretation of § 301 would, in addition, raise a serious issue concerning the Act’s constitutionality. An interest in a copyright is a property right protected by the due process and just compensation clauses of the Constitution. The agreement between Roth and the appellees, pursuant to which Roth surrendered any rights she might otherwise have obtained in the copyright, was valid when it was entered into, and a subsequently enacted statute which purported to divest Pritikin and McGrady of their interest in the copyright by invalidating the 1977 agreement could be viewed as an unconstitutional taking. Resolution of this issue is not required for our holding, and will have to wait for an appropriate case.

Moreover, the district court failed to make any findings relevant to this question, and accordingly, we do not decide whether retroactive application would, in fact, violate constitutional restrictions. Even the spectre of a constitutional issue concerning the proper application of the “takings clause”, however, is sufficient cause to construe the statute to provide for exclusively prospective relief, particularly in the absence of any clear congressional mandate to the contrary.13

The Second Circuit again noted the possibility that the Takings Clause applies to copyright in CCC Information Serv. v Maclean Hunter Mkt. Rep.14 There, the creator of a database of used car valuations (CCC) sought a declaration that its copying and republishing of used car values from a competitor was not copyright infringement. It argued, in part, that since the competitor’s used car valuations were incorporated by reference into several state insurance regulations, the compilation of values had “passed into the public domain.” The Second Circuit disagreed, saying:

We are not prepared to hold that a state’s reference to a copyrighted work as a legal standard for valuation results in loss of the copyright. While there are indeed policy considerations that support CCC’s argument, they are opposed by countervailing considerations. For example, a rule that the adoption of such a reference by a state legislature or administrative body deprived the copyright owner of its property would raise very substantial problems under the Takings Clause of the Constitution.15

The Ninth Circuit relied in part on CCC Information to uphold the validity of a copyright in Practice Management Info. v American Medical Ass’n, quoting approvingly the Second Circuit’s Takings Clause discussion.16

The Fifth Circuit has had occasion to weigh in on this issue of copyright and the Takings Clause. Like several of the cases already discussed, Chavez v Arte Publico Press concerned tensions between the Copyright Act and the Eleventh Amendment’s protection of state sovereign immunity.17 Here, an author alleged copyright infringement and breach of contract against the University of Houston, a state institution. During its discussion, the Circuit Court stated, “Copyrights are indeed a species of property, but the extent to which they are protectable against the states raises troubling issues.” Citing to the Supreme Court’s holding in Ruckelshaus that trade secrets are property protected by the Takings Clause, the court said, “By analogy, copyrights constitute intangible property that, for some purposes at least, receives constitutional protection.” The court ultimately held, however, that one of those purposes does not include copyright infringement by a State.

Finally, the Sixth Circuit also appears to have taken the view that copyrights may be subject to the Takings Clause. In a non-precedential opinion, it affirmed the dismissal of a copyright infringement claim against the National Science Foundation because the plaintiff had failed to register his work with the Copyright Office before bringing suit.18 But not without expressing “some doubt as to the grounds for dismissal.” The source of this doubt stemmed from constitutional concerns; as the court noted, “the Copyright Act does not preempt the Fifth Amendment’s Takings Clause.”

In short, it’s reasonable to conclude that the Takings Clause would apply to copyrights — the opposite of what Bell claims. This is obviously but one point in the larger work of Copyright Unbalanced. I may look at other points raised in the book at a later date, but for now would suggest to anyone reading it to approach it with a skeptical eye.

Footnotes

  1. For just one example, see Myths from the Birth of US Copyright for evidence that the Founding Fathers primarily conceived copyright as a property right. [↩]
  2. Chicago B & QR v Chicago, 166 US 226 (1897). [↩]
  3. See Penn Central Transport v New York City, 438 US 104, 124 (1978). [↩]
  4. Eastern Enterprises v Apfel, 524 US 498, 554 (Dissent, J. Stevens, J. Souter, J. Ginsburg, and J. Breyer). [↩]
  5. Ruckelshaus v Monsanto, 467 US 986, 1002-03 (1984). [↩]
  6. In Kewanee Oil v Bicron Corp., 416 US 470, 497 (1974) (J. Douglas & J. Brennan dissenting)., two Supreme Court Justices stated off-hand that, contrary to this case, “A trade secret, unlike a patent, has no property dimension.” So it would follow that a subsequent decision saying trade secrets do in fact have a property dimension for Fifth Amendment purposes implies patents and copyrights certainly fall within the Clause’s scope. [↩]
  7. 442 F.3d 1335. [↩]
  8. See 28 USC § 1498(a), (b). [↩]
  9. 464 F.3d 1335 (2006). [↩]
  10. Lane v First National Bank of Boston, 871 F.2d 166 (1st Cir. 1989). [↩]
  11. Id. at 174. [↩]
  12. Roth v Pritikin, 710 F.3d 934 (2nd Cir. 1983). [↩]
  13. Id. at 939. [↩]
  14. 44 F.3d 61 (2nd Cir. 1994). [↩]
  15. Id. at 74. [↩]
  16. 1212 F.3d 516, 520 (9th Cir. 1997). [↩]
  17. 157 F.3d 282 (5th Cir. 1998). [↩]
  18. Cawley v Sw’earer, 936 F.2d 572 (6th Cir. 1991). [↩]
Posted in: Copyright reform · 11 comments

Share: Reddit Google+ LinkedIn

Does Copyright Involve Scarcity?

December 05, 2012 · · 18 comments

Among the arguments against copyright law is the argument that copyright is not a property right. The “robust history” of describing copyright in terms of property1 is simply wrong, say proponents of this argument. One line of such arguments claims that property rights are only justified to resolve conflicts over scarce goods. Because expressive works protected by copyright are not scarce — that is, one person’s use of a book, song, or film does not diminish another person’s ability to use that same work — the necessary condition for legitimate property rights is not met.

It is this view of copyright that seems to have informed the recently retracted Republican Study Committee policy brief on copyright law. The brief rejected the characterization of copyright as property right and instead characterized it as a monopoly privilege antithetical to free market principles.

I want to suggest an argument today that counters this conception of copyright. It is, in fact, concerned with scarcity. The error comes from mistaking the actual right at issue — the right to copy (hence, “copy right”) — with the actual right at issue with tangible goods, typically a right to possess.

Property is, at its heart, the set of rules concerning the relationship between individuals and things, and is one of the foundational legal doctrines, along with contract and tort law. Because property is conceptual, it, by definition, is not barred from being applied to intangible goods.

But some have made the argument, explored in more detail below, that property rights are only legitimate when they apply to scarce goods, ie, goods where one person’s use prevents its use by someone else. Property rules originated to resolve conflict over such rivalrous goods, so if a certain good is not rivalrous, then recognizing a property right in it is not justified.

What is Property?

In his 1990 article What is Property?,2 libertarian scholar Boudewijn Bouckaert provides an account of scarcity, saying it both explains and justifies property rights. While the concept of scarcity is discussed by earlier philosophers and legal theorists, the modern “law and economics” view places scarcity front and center as a rationale for these rights.

Scarcity is defined by Bouckaert as arising “when two or more persons consider one good as a means for the satisfaction of their wants and when the use they intend to make of it is incompatible.” But he prefaces this by noting that scarcity likely involves a “dimension beyond mere allocation” — solving allocative scarcity would require a “super-individual authority” to divvy up how and when competing individuals could use a certain good. So, we’re concerned primarily with distributive scarcity, which is unavoidable and leads to three possible outcomes, according to Bouckaert: “(1) permanent conflict–the assignments of scarce means are the result of the use of violence, ruse, and tactical games; (2) resignation–a resource becomes the object of competition, both parties withdraw, and such withdrawal means isolation and a massive drop in world population; (3) rules–assignments of power over scarce resources to individuals, groups, families, the government, and so forth.”

Bouckaert distinguishes between natural scarcity, which occurs prior to any social or political institutions, and artificial scarcity, which is the result of arrangements by such institutions. In the “law and economics” view, the first justifies property rights, but the second requires its own justification.

For purposes of this article, I will assume this argument is valid. But I do want to point out that the argument that property rights require scarcity is a minority view, one that has not escaped its share of criticism. Philosopher David Faraci, for example, has asked Do Property Rights Presuppose Scarcity? and concludes that the argument has thus far been under-motivated. Faraci notes that many dominant theoretical views of property appeal to values beyond the conflict-resolution inherent in the scarcity view of property rights. IP scholar Robert Merges rejects this “historical-essentialist” concept of property outright, in favor of a more “broad and roomy” conception whose “origins do not imply constraints of limits.” Merges sees a “powerful logic” in property, and its “restless capacity” to morph and adapt throughout its history to different arenas provides a robustness that makes as much sense to apply to intangibles as to physical property.3

Though whether or not copyright is considered “property” may seem like a matter of semantics, it does have implications for the proper role and scope of copyright law. If copyright is redefined as being something other than property — a “mere privilege” or an economic monopoly, for example — it is easier to argue that it is inconsistent with free market principles rather than being the mechanism for establishing a functioning market that fosters investment and dissemination of creative and expressive works.

Property in the Copy Right

Property is sometimes defined as including the right “to possess, use, enjoy, and dispose of a thing.” Possession is often considered one of the most basic of rights held by property owners. It is this right that is typically discussed when dealing with scarcity: only one person can possess a good at any given time.

Copyright, however, is not concerned with possession. Indeed, things get pretty metaphysical real fast if you start talking about how one can have possession over the intangible expression of an idea. Copyright instead is concerned with copying, which can be considered a specific form of using the property.4

Copying, the act, should be distinguished from the copy, which is the material object that includes the expressive work in fixed form. These copies are treated as any other form of personal property. In fact, the US Copyright Act expressly distinguishes between copies and copying and notes that the right to copy is not the same as ownership in the resulting copies.5

The act of copying an expressive work, like the act of possessing a physical item, is rivalrous. Your copying of an expressive work diminishes my ability to copy an expressive work.

Odds and Ends

Now, in order to support this argument, one would need to include several additional claims.

First, we need to assume that we are dealing with a finite limit on the amount of copying that can occur. Expressive works are, after all, potentially infinitely reproducible — and, when they exist digitally, those copies can be made at near-zero cost.

But I think this focuses on the wrong thing. We could, in theory, reproduce any given work infinitely. But in practice, we don’t. A few weeks ago, Psy’s “Gangnam Style” music video became the most viewed video ever on YouTube, with over 800 million views and counting. Eight hundred million is a big number, but it’s still far less than infinity. Even the Bible itself, one of the most widely printed books for hundreds of years, has been printed an estimated six billion times.

So even given the fact that if we had an infinite amount of storage space and an infinite amount of time, we could infinitely reproduce any given work, I don’t think that is relevant. As a practical matter, we are always dealing with a naturally (and economically) scarce ability to copy an expressive work.

Second, we could assume that productive use of resources is inherent to any property system. This is apparent from the very term “law and economics”, where the law prong is concerned with resolution of conflict over scarce resources but the economics prong deals with creating value. Generally, we’re not driven to conflict merely because we are all Gollums, obsessing over our precious things. We seek them because of the value they can provide in producing wealth. Historically, copying has been one of the primary methods (though certainly not the only method) of extracting value from expressive works.

Finally, a caveat.

By saying that copying is rivalrous, I don’t mean to suggest that this rivalry exists anywhere near a 1:1 relationship. That is, I’m definitely not suggesting that “every download is a lost sale” or anything like that. It is simply an act that can be incompatible between two or more people. This is similar to possession: scarcity in this sense doesn’t imply a requirement that the use of a scarce good by two or more people has to occur at the same time or wholly deprive one of the use of the good. For example, if I use your hammer while you’re asleep, you haven’t “lost” anything. There simply has to be that potential for incompatible uses prior to any application of property rules.

Footnotes

  1. See Justin Hughes, Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 Southern California Law Review 993, 1004 (2006); Myths from the Birth of US Copyright. [↩]
  2. 13 Harvard Journal of Law & Public Policy 775 (1990). [↩]
  3. Robert P. Merges, Justifying Intellectual Property, pp. 4-5 (Harvard University Press 2011). [↩]
  4. Public performance and public display could similarly be mentioned here, though I leave them out for readability sake. [↩]
  5. 17 USC § 202, “Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.” [↩]
Posted in: Copyright Criticism · 18 comments

Share: Reddit Google+ LinkedIn

Friday’s Endnotes – 10/26/12

October 26, 2012 · · 1 comment

Claeys on Justifying IP— The Legal Theory Blog points to a new paper from Eric Claeys, On Cowbells in Rock Anthems (and Property in IP): A Comment on Justifying Intellectual Property, which examines Robert Merges’ 2011 book, Justifying Intellectual Property. The title of the paper refers to a popular Saturday Night Live skit, and like Christopher Walken, who “gotta have more cowbell”, Claeys looks at Merges’ book and “gotta have more property.”

The Big Debate: OK gloomsters, how can the music biz be FIXED? — Andrew Orlowski reports on a recent Battle of Ideas conference he participated in, along with Helienne Lindvall, John Waters, and Alan Miller. A lot of great remarks, like this one from Miller toward the end: “The phrase someone used, ‘The genie is out of the bottle’, is really a call for passivity. But we make the world every day anew, if we want to and chose to. That’s the bit that’s missing. That we can’t innovate, we can’t come up with ways to modify things – that the obstacles are too immense. We need to separate things that we project onto the technology, and then say they’re part of that technology. They’re not. We innovate.”

Pandora, Clear Channel, Others Form Lobby Group for Lower Web Radio Payments; MusicFirst Pushes Back — Another week, another lobbying group from the tech industry. This one, along with Pandora and Clear Channel, includes the “Consumer Electronics Association, terrestrial broadcaster Salem Communications, AccuRadio, Small Webcaster Alliance and Computer and Communications Industry Association,” according to Billboard, and seeks to drum up support for the Internet Radio Fairness Act. The bill has already drawn criticism from the musicFIRST Coalition.

Voters Growing Disillusioned with Germany’s Pirate Party — Spiegel Online has an in-depth look at the stunning, self-inflicted implosion of the Pirate Party in Germany.

Who Killed (Or Saved!) The Music Industry? by Future Machine — An interesting sounding documentary currently seeking funding on Kickstarter. “Fifteen years ago the record business was flourishing. Sales were at an all time high, and everyone from the major label executives all the way down to the roadies were enjoying the success. Today, the music business is largely a working class industry. Record labels have seen dramatic revenue loss, and many artists have seen once lucrative careers diminish, if not disappear altogether. Some blame technology, some blame consumers, still others blame the record companies. This documentary seeks to explore the intersection of these ideas and find answers to the big questions.”

Notice of inquiry for orphan works — The US Copyright Office is currently seeking comments on orphan works. In its inquiry, it notes, “The Copyright Office is reviewing the problem of orphan works under U.S. copyright law in continuation of its previous work on the subject and to advise Congress on possible next steps for the United States. The Office has long shared the concern with many in the copyright community that the uncertainty surrounding the ownership status of orphan works does not serve the objectives of the copyright system. For good faith users, orphan works are a frustration, a liability risk, and a major cause of gridlock in the digital marketplace. The issue is not contained to the United States. Indeed, a number of foreign governments have recently adopted or proposed solutions.”

Catching Up, Not Cord Cutting, Drives Increase in Content Streaming: Study — Some interesting results from a recent survey by TVGuide.com.

Posted in: Friday's Endnotes · 1 comment

Share: Reddit Google+ LinkedIn

Exclusive Rights are a Means, Not an End

June 11, 2012 · · 3 comments

The Harvard Law Review recently conducted a symposium on The New Private Law (an admittedly academic area that I haven’t yet delved into too deeply). I was attracted by contributions by Abraham Drassinower and Richard Epstein on copyright law. But what really caught my attention was law professor Henry E. Smith’s paper, Property As a Law of Things.

In it, Smith challenges the prevailing view of property as a “bundle of rights,” criticizing it as not offering a complete theory of property law. What I found interesting is how Smith at several times notes that much of property law is centered around the concept of “exclusion” — if something is considered yours, you can prevent others from using it.

Property has purposes and employs various means to serve them. The purposes of property relate to our interest in using things. Desirable features of a system of property — stability, promotion of investment, autonomy, efficiency, fairness — relate to the interest in use. There is no interest in exclusion per se. Instead, exclusion strategies, including the right to exclude, serve the interest in use; by enjoying the right to exclude through torts like trespass, an owner can pursue her interest in a wide range of uses that usually need not be legally specified.

The “right to say no” is central to property law, but it is not the goal of property law. This is, perhaps, an obvious point, but, as Smith explains, it causes much confusion when we think about the means and ends of property:

The architecture of property emerges from the process of solving the problem of how to serve use interests in a roughly cost-effective way. In modern societies, the solution usually involves first the application of a use-neutral exclusion strategy, and then refinement through contracts, regulations, common law doctrine, and norms. Exclusion is at the core of this architecture because it is a default, a convenient starting point. Exclusion is not the most important or “core” value because it is not a value at all. Thinking that exclusion is a value usually reflects the confusion of means and ends in property law: exclusion is a rough first cut — and only that — at serving the purposes of property. It is true that exclusion piggybacks on the everyday morality of “thou shalt not steal,” whereas governance reflects a more refined Golden-Rule, “do unto others” type of morality in more personal contexts. It may be the case that our morality itself is shaped to a certain extent by the ease with which it can be communicated and enforced in more impersonal settings. I leave that question for another day. But the point here is that the exclusion-governance architecture is compatible with a wide range of purposes for property.

The same is true for copyright law. At its heart, copyright law secures exclusive rights to creators of original expressive works: the right to copy and distribute, the right to publicly perform and display, and the right to make derivative works. Though some commentators grow squicky at the mention of “property talk” in copyright discussions,1 the exclusive right of an author to copy her work is functionally the same as the exclusive right of a landowner to occupy her land or the exclusive right of a property owner to possess whatever the thing may be.

The confusion Smith refers to, over exclusion as a value, is very much present in copyright discussions. Many suggest that “relying on copyright” is the same as “preserving outdated business models.” What use is copyright if, for example, creators can raise funds on Kickstarter, or release their work online freely and seek remuneration through ancillary avenues?

These are valid choices for any creator, but it is vital to remember that they remain just that: the creator’s choice. Those values Smith refers to — “stability, promotion of investment, autonomy, efficiency, fairness” — are served by this. The “right to say no” that copyright secures is merely shorthand for ensuring a meaningful ”right to say yes” to uses that are valuable to both the creator and the general public. To say that new business models refute the need for copyright is to confuse exclusion as a framework for furthering copyright’s goals with exclusion as a value in and of itself.

That’s not to say ”exclusion” is the be all and end all of any property system. As Smith explains:

The exclusion strategy implemented as a right to exclude is at the core of the mechanism property uses to serve owners’ and society’s real interests. The right to exclude does not require an owner, whether it be an individual, a group, or the state, to actually exclude others; the gatekeeper can decide to include. Nor does the fact that a right to exclude follows automatically from the organization of modular things through an exclusion strategy mean that the right to exclude is absolute.

This is a strategy that has served copyright’s purpose well, especially when new technologies become popular. In 1909, Congress recognized that songwriters have the exclusive right to make mechanical reproductions of their works onto phonorecords and other mechanical devices, and recorded music has since become an integral part of many of our lives. US courts began to recognize an exclusive right to perform songs via broadcast radio in the 1920s.2 Today, radio is a multibillion dollar industry that penetrates nearly every US household. Cable television providers were at first exempt from copyright law for retransmitting broadcast shows, but Congress changed that in 19763 — this industry too has grown in size and reach since then, and original cable programming has progressed from endearingly awkward cable access shows to programs like Breaking Bad, Louie, and Burn Notice.

Granted, in the case of mechanical reproductions and cable retransmission of broadcast programs, US law has created compulsory licenses that allow certain uses, coupled with compensation set by statute, without requiring permission from the copyright holder. The existence of such compulsory licenses doesn’t negate what I’m saying. As mentioned above, there is no value in exclusion itself, and the right doesn’t require actual exclusion; compulsory licenses demonstrate that there are times when there are certain values — e.g., lowered transaction costs,4 concerns about monopoly5 — that are better served through alternatives to exclusion.

Creators, technology companies, and the general public have all benefitted from this framework that starts with exclusivity. Continuing to secure copyright’s exclusive rights is important to further the goals of copyright. In the words of the US Copyright Clause’s author James Madison, “[t]he public good fully coincides … with the claims of individuals”6 — or, as Register of Copyrights Maria Pallante stated recently, copyright is ”for the author first and the nation second.” To say otherwise is to confuse copyright’s exclusivity as an ends rather than a means, setting it up as a strawman to strike down in an underdeveloped view of the nature of copyright.

Footnotes

  1. For example: Bill Patry, Copyright and the Why of Property Talk (2009); Steve Collins, ‘Property Talk’ and the Revival of Blackstonian Copyright (2006); Siva Vaidhyanathan, Copyrights and Copywrongs, pg 11-15 (2001). [↩]
  2. William Henslee, What’s Wrong with U.S.?: Why the United States Should Have a Public Performance Right for Sound Recordings, 13 Vanderbilt Journal of Entertainment and Technology Law 739, 754 (2011). [↩]
  3. Niels Schaumann, Copyright Protection in the Cable Television Industry: Satellite Retransmission and the Passive Carrier Exemption, 51 Fordham L. Rev. 637 (1983). [↩]
  4. Copyrighted Broadcast Programming on the Internet, Statement of Marybeth Peters, The Register of Copyrights, before the Subcommittee on Courts and Intellectual Property Committee on the Judiciary, US House of Representatives, 106th Congress (June 15, 2000): “For the cable license, Congress believed that the transaction costs associated with a cable operator and copyright owners bargaining for separate licenses to all television broadcast programs retransmitted by the cable operator were too high to make the operation of the cable system practical.” [↩]
  5. Music Licensing Reform, Statement of Marybeth Peters, The Register of Copyrights, before the Subcommittee on Intellectual Property, Committee on the Judiciary, US Senate, 109th Congress (July 12, 2005): “due to concerns about potential monopolistic behavior, Congress also created a compulsory license to allow anyone to make and distribute a mechanical reproduction of a nondramatic musical work without the consent of the copyright owner .” [↩]
  6. The Federalist No. 43. [↩]
Posted in: Copyright's Values · 3 comments

Share: Reddit Google+ LinkedIn

Copyright and the First Amendment: The Unexplored, Unbroken Historical Practice, Part 4

January 02, 2012 · · 66 comments

Does copyright conflict with free speech? The idea that it does has gained a lot of traction recently. Yet arguments of a conflict between copyright law and the First Amendment in the United States are relatively new — understanding why the two co-existed for nearly two centuries before these arguments began to appear should prove valuable to current scholarship.

In previous posts, I outlined several explanations for this lack of conflict based on historical documents and court decisions. Copyright laws were passed by the States after provisions for freedom of speech and the press were enshrined in law, indicating that the two were viewed as compatible. At that time, Liberty of the press was defined primarily as an absence of government licensing — even under broader definitions, protecting an author’s copyright was not viewed as offensive to a free press. In part, this was because copyright was conceived as a property right, and liberty does not extend to invasions of other’s rights.

Today I want to present perhaps one of the most important reasons copyright has historically escaped free speech scrutiny.

During their formative years, the liberty of the press and recognition of copyright were seen as means to an end. They shared the same goal — the advancement of knowledge, the arts, and sciences. And they were viewed as complementary, rather than conflicting, means to reach this goal.

Freedom of the Press Goals and Purpose

During the 18th century, at a minimum, the freedom of the press meant an absence of prior restraints on publishing — whether through government licensing or censorship. Noted jurist William Blackstone, who ensconced this minimalist definition of press liberty in his Commentaries on the Laws of England, described the aversion to previous restraints: “To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government.”

The Founding Fathers viewed the liberty of the press as promoting broader goals then this. In a 1774 Letter to the Inhabitants of the Province of Quebec, the First Continental Congress wrote:

The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.

To the Continental Congress, the primary purpose of press liberty was political: a democratic government needs to be openly examined to function. But note the secondary purpose: “the advancement of truth, science, morality, and arts in general.” This is strikingly similar to the later constitutional purpose given for Congress’s copyright authority: “To promote the Progress of Science and useful Arts.”

A Free Press Promotes Knowledge

There are other examples from the 18th and 19th centuries of those who believed one of the purposes of free speech was to encourage knowledge.

The Cato Letters, a series of newspaper articles published in England in the 1720s that served as ideological inspiration for the Founding Fathers, included this oft-quoted passage on the freedom of speech: “Freedom of speech is the great bulwark of liberty; they prosper and die together: And it is the terror of traitors and oppressors, and a barrier against them. It produces excellent writers, and encourages men of fine genius.”

In his preface to the 1738 edition of Milton’s Areopagitica, poet James Thomson1 writes about the importance of this goal of a free press to society:

What is it that distinguishes human Society from a brutish herd, but the flourishing of the Arts and Sciences; the free Exercise of Wit and Reason? What can Government mean, intend, or produce, that is worthy of Man, or beneficial to him, as he is a rational creature, besides Wisdom, Knowlege, Virtue and Science? Is it merely indeed that we may eat, drink, sleep, sing and dance with security that we choose Governours, subject our selves to their administration, and pay taxes? Take away the Arts, Religion, Knowlege, Virtue, (all of which must flourish, or sink together) and in the Name of Goodness, what is left to us that is worth enjoying or protecting? Yet take away the Liberty of the Press, and we are all at once stript of the use of our noblest Faculties: our Souls themselves are imprisoned in a dark dungeon: we may breathe, but we cannot be said to live.

Liberty of the press, as Milton argued for in what is considered one of the “most influential and impassioned philosophical defences” of the principle — here, taking the form of an absence of government licensing or censorship — is a prerequisite to the progress of knowledge, art, and science. Thomson was not alone in this sentiment.

Elsewhere, a London magazine from 1820 described the goal of the liberty of the press like this: “To promote the diffusion of knowledge, to elicit the fruits of genius, to facilitate and to encourage the general interchange of minds and of hearts”

And the first issue of the American Magazine of Useful and Entertaining Knowledge, published in 1834, included a brief article on newspapers, where it was writeen, “The progress of society has been onward, wherever there has been a free press maintained and encouraged. It has chased away much darkness from the civilized parts of the world, and spread light and knowledge in our path.”

Copyright Promotes Knowledge

The copyright statutes passed in the States prior to the drafting of the Constitution use similar language. The acts were passed with the purpose of “the encouragement of literature and genius” and the goal of, for example, “the improvement of knowledge, the progress of civilisation, and the advancement of human happiness.” The means of implementing this purpose to reach the goal was the securing of legal rights to “men of learning who devote their time and talents” to literature and genius.2

The impetus for these laws came in part from the efforts of authors like Joel Barlow. In 1783, he wrote the Continental Congress in favor of a copyright law. The famous poet and drafter of the Treaty of Tripoli told the Congress, “As we have few Gentlemen of fortune sufficient to enable them to spend a whole life in study, or enduce others to do it by their patronage, it is more necessary, in this country than in any other, that the rights of authors should be secured by law.”

Barlow’s letter encapsulated the reasoning behind the idea of copyright as an incentive to promote knowledge: literary and intellectual works took a considerable amount of time and resources to produce, and given the great public benefits that flow from them, some way of encouraging people to devote their time and resources to producing them was needed.

You can see this idea adopted and explained by others throughout the 19th century. In his famous speech to the English House of Commons in 1841, Thomas Babington Macaulay said:

The advantages arising from a system of copyright are obvious. It is desirable that we should have a supply of good books; we cannot have such a supply unless men of letters are liberally remunerated; and the least objectionable way of remunerating them is by means of copyright. You cannot depend for literary instruction and amusement on the leisure of men occupied in the pursuits of active life. Such men may occasionally produce compositions of great merit. But you must not look to such men for works which require deep meditation and long research. Works of that kind you can expect only from persons who make literature the business of their lives. Of these persons few will be found among the rich and the noble. The rich and the noble are not impelled to intellectual exertion by necessity. They may be impelled to intellectual exertion by the desire of distinguishing themselves, or by the desire of benefiting the community. But it is generally within these walls that they seek to signalise themselves and to serve their fellow-creatures. Both their ambition and their public spirit, in a country like this, naturally take a political turn. It is then on men whose profession is literature, and whose private means are not ample, that you must rely for a supply of valuable books. Such men must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright.

In 1853, Charles Bishop Goodrich published The Science of Government: As Exhibited in the Institutions of the United States, a popular early treatise on US government. His section on copyright takes the same view as Barlow and Macaulay:

Another power conferred upon congress was and is designed “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” … The propriety of the power, and of its enlarged and liberal exercise, cannot be doubted. Individuals cannot devote their time and lives to the attainment of extensive or important knowledge, unless they can derive some personal benefit from their labor. In every useful invention, in the production of useful writings, the public have as much, and frequently a greater interest than the individual inventor or writer can have. Every measure which can with propriety be adopted to enlarge and extend the progress of science and of the arts, is calculated to accomplish the elevation of the people, and must therefore be regarded as of the utmost importance. The effect of our system, and the encouragement which it affords to the promotion of knowledge, has been apparent. Much advancement has been made, in fact it may be regarded as characteristic, and may be said of the American people, that they are progressive, inventive, and suggestive, in all their operations.

Patronage

At this point, one might think that the shared goals of a free press and copyright are only coincidental: one could easily find references to other means of promoting knowledge at the time. For example, in his first State of the Union address, President George Washington told Congress, “There is nothing which can better deserve your patronage than the promotion of science and literature,” but left it to them to decide “Whether this desirable object will be best promoted by affording aids to seminaries of learning already established, by the institution of a national university, or by any other expedients.”

Yet as the ideas of a free press and copyright developed, the relationship between the two strenghthened. There was something specific about securing legal rights to authors so that they may profit off their writings that not only advanced the arts and sciences but also advanced the principles of a free press.

As noted above, Macaulay spoke about two ways to remunerate authors: patronage and copyright. He follows that with an explanation of why the latter is more preferable to a free society:

There have been times in which men of letters looked, not to the public, but to the government, or to a few great men, for the reward of their exertions. It was thus in the time of Maecenas and Pollio at Rome, of the Medici at Florence, of Louis the Fourteenth in France, of Lord Halifax and Lord Oxford in this country. Now, Sir, I well know that there are cases in which it is fit and graceful, nay, in which it is a sacred duty to reward the merits or to relieve the distresses of men of genius by the exercise of this species of liberality. But these cases are exceptions. I can conceive no system more fatal to the integrity and independence of literary men than one under which they should be taught to look for their daily bread to the favour of ministers and nobles. I can conceive no system more certain to turn those minds which are formed by nature to be the blessings and ornaments of our species into public scandals and pests.

Like Macaulay, Supreme Court Justice Joseph Story tied the freedom of the press and copyright together. In an 1826 discourse, Story wrote:

One of the most striking characteristics of our age, and that, indeed, which has worked deepest in all the changes of its fortunes and pursuits, is the general diffusion of knowledge. This is emphatically the age of reading. In other times this was the privilege of the few; in ours, it is the possession of the many. Learning once constituted the accomplishment of those in the higher orders of society, who had no relish for active employment, and of those, whose monastic lives and religious profession sought to escape from the weariness of their common duties. Its progress may be said to have been gradually downwards from the higher to the’middle classes of society. It scarcely reached at all, in its joys or its sorrows, in its instructions or its fantasies, the home of the peasant and artisan. It now radiates in all directions; and exerts its central force more in the middle than in any other class of society. The means of education were formerly within the reach of few. It required wealth to accumulate knowledge. The possession of a library was no ordinary achievement. The learned leisure of a fellowship in some university seemed almost indispensable for any successful studies; and the patronage of princes and courtiers was the narrow avenue to public favor. I speak of a period at little more than the distance of two centuries; not of particular instances, but of the general cast and complexion of life.

The principal cause of this change is to be found in the freedom of the press, or rather in this, cooperating with the cheapness of the press. … The daily press first instructed men in their wants, and soon found, that the eagerness of curiosity outstripped the power of gratifying it. No man can now doubt the fact, that wherever the press is free, it will emancipate the people; wherever knowledge circulates unrestrained, it is no longer safe to oppress; wherever public opinion is enlightened, it nourishes an independent, masculine, and healthful spirit. If Faustus were now living, he might exclaim with all the enthusiasm of Archimedes, and with a far nearer approach to the truth, Give me, where I may place a free press, and I will shake the world.

One interesting effect, which owes its origin to this universal love and power of reading, is felt in the altered condition of authors themselves. They no longer depend upon the smiles of a favored few. The patronage of the great is no longer submissively entreated, or exultingly proclaimed. Their patrons are the public; their readers are the civilized world. They address themselves, not to the present generation alone, but aspire to instruct posterity. No blushing dedications seek an easy passport to fame, or flatter the perilous condescension of pride. No illuminated letters flourish on the silky page, asking admission to the courtly drawingroom. Authors are no longer the humble companions or dependents of the nobility: but they constitute the chosen ornaments of society, and are welcomed to the gay circles of fashion and the palaces of princes. Theirs is no longer an unthrifty vocation, closely allied to penury; but an elevated profession, maintaining its thousands in lucrative pursuits.

Copyright: a Critical Component of a Free Press

It would seem that Story and Macaulay’s view of copyright as an integral component of a free press held sway throughout the 18th century and into the 19th.

An editorial calling for copyright protection of newspaper articles appeared in The Reasoner in 1844, in which the authors argued, “If the public desire a really free press, they must not look to it as a source of taxation; and if they are anxious for truth, for elevated and elevating sentiments, for ideas matured by study and reflection, and an honest exposition of grievances, they must recognise original articles as property, and secure them against a plundering appropriation by a copyright.”

British lawyer James Paterson, in an 1880 commentary on the liberty of the press, speech, and public worship, said that ”When any person is free to publish whatever he deems interesting or valuable either as a mode of procuring profit to himself or as a means of influencing the minds and will of his fellow-citizens on matters on which union and combination can effect great results, this is the highest mark of freedom.”

Into the 20th century, we can find reaffirmation of these views. Historian Edward Bloom writes:

Recognition of proprietary rights of authors under the Copyright Act of 1709 was an extremely important step in liberating the press. Copyright security helped to stimulate private initiative by providing authors of books some measure of financial independence. By at least partially obviating the economic function of political patrons, the Act of 1709 aided immeasurably in the freedom of the press.3

Finally, when legal scholars were just starting to develop the free speech critique of copyright, former Register of Copyrights Barbara Ringer offered these observations:

[T]he concept of copyright changed radically as a result of the revolutionary political movements of the late 18th and 19th centuries, and the first copyright statutes were based on a rejection of autocratic repression and monopoly control and upon a new recognition of individual liberty and the human rights of authors. … Freedom of speech and freedom of the press are meaningless unless authors are able to create independently from control by anyone, and to find a way to put their works before the public.4

The Engine of Free Expression

Nearly two centuries after the Bill of Rights and the first Copyright Act were passed, the Supreme Court said, “[T]he Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.”5

This metaphor, it would seem, accurately reflects the predominant historical view of copyright. Copyright and freedom of the press were seen as compatible, rather than contradictory, means to promote knowledge and learning. Liberty of the press freed the public from the caprice of the licensor, allowing diverse ideas and sentiments to disseminate. Copyright freed authors from patronage, providing security for the legal rights that encouraged devotion of time and talents to works that promote the progress of art and science.

Footnotes

  1. Copyright scholars will recognize James Thomson as the author of the poem “The Seasons“, which was the subject of two of the most important lawsuits in copyright history: Millar v. Taylor and Donaldson v. Beckett. [↩]
  2. See Connecticut Copyright Statute (1783); New Jersey Copyright Statute (1783); Massachusetts Copyright Statute (1783); New Hampshire Copyright Statute (1783); Maryland Copyright Statute (1783); Rhode Island Copyright Statute (1783); Pennsylvania Copyright Statute (1784); South Carolina Copyright Statute (1784); Virginia Copyright Statute (1785); North Carolina Copyright Statute (1785); Georgia Copyright Statute (1786); New York Copyright Statute (1786). [↩]
  3. Edward Bloom, Johnson on a Free Press: A Study in Liberty and Subordination, A Journal of English Literary History (Dec. 1949). [↩]
  4. The Demonology of Copyright, R.R. Bowker Memorial Lecture, 1974. [↩]
  5. Harper & Row v. Nation Enterprises, 471 US 539, 558 (1985). [↩]
Posted in: Copyright history · 66 comments

Share: Reddit Google+ LinkedIn

The Modern Contrivance of Copyright (1875)

August 25, 2011 · · 3 comments

The following is from the beginning of Appleton Morgan’s 1875 treatise, “Law of Literature,” which has been said to have “codified the law of literary property in the United States.”1

Before the invention of the art of printing, we have seen that literary compositions were published, either by delivery, by word of mouth, or by a laborious and careful copying of the manuscript upon parchment, which was then wound upon rollers into a volume or book. Still later, writings were published by being inscribed upon parchment, and scattered broadcast along the highways, or over the fields. Says the outlaw’s song of Trail le Baston:

Escrit estoit en parchemyn pur mont remember
Egitté en haut chemyn qe urn le dust trover.2

This method of publication seems to have been employed until quite the sixteenth century. We find mention of “a libel or book entitled ‘The Supplication of Beggars/ thrown and scattered at the procession in Westminster, on Candlemas day (2 February, 1562), before King Henry the Eighth, “for him to read and peruse”; and of Wolsey, complaining to that king, “of divers seditious persons having scattered abroad books.” So, too, Burdett was tried “for conspiring to kill the king and prince by casting their nativities, fortelling the speedie death of both, and scattering letters containing the prophecy among the people.” Copyright is a modern contrivance by which an author may, if he will, still scatter his productions to the four winds, and yet retain, if he will, the exclusive control over them, and over their further multiplication. It is a provision by which the contents of the scattered page are still his (disconnected from any possession in plate, or type, or paper, or in any other physical existence), constituting a property in which he can traffic, and which he can buy and sell and bestow.

The privilege of an author to the exclusive sale of his works for a limited number of years, although practically in the nature of a monopoly, is not a monopoly in the odious meaning of the term.

A monopoly proper is a right given to one individual to produce or traffic in a commodity which others are fully as able to produce or traffic in as he, if permitted to do so. A monopoly is a rule against competition. But there can be no competition in the productions of a man’s own brain. A man has, by natural law, a right to the exclusive power of first disposing of his own productions or manufactures; and the pursuit and enjoyment of that exclusive right can never be a monopoly. The author only has given him, by law, what in morality, equity, and good conscience, he had before. Or, to speak more accurately, the law gives him a method of asserting and protecting his right. Statutes of copyright only shift the burden of proof in favor of the author.

That copyright laws are beneficial to the public, as well as to the author, cannot be questioned. Rich and vast as are our stores of literature, how much richer and vaster might they have been, if the first English copyright act had been the act of Elizabeth instead of the act of Anne; or if the days of Chaucer, no less than the days of Dryden, had been enlightened by such protective legislation!

It is not improbable that we owe to the fact, that, in his day, a manuscript or published work, was practically without protection and not to be intrusted beyond the writer’s hand, that no authentic and authoritative text of Shakespeare exists, and nothing but inaccurate, interpolated, and expurgated texts of Fletcher, Beaumont, Webster, and a score of other contemporary writers. So long as a service to literature is a service to the people, copyright laws cannot be classed as mere individual monopolies. The only property which is reserved to the author, and which the law gives him, is the exclusive right to multiply copies of that particular combination of character which exhibits, to the eye of another, the ideas he intends to convey.

The Law of Literature, by James Appleton Morgan. Vol. II, James Cockcroft & Co. (New York, 1875).

Footnotes

  1. The National Cyclopedia of American Biography, “Morgan, Appleton“, Volume 9, pg 452, James T. White & Co. (New York, 1899). [↩]
  2. “It was written on parchment to be well remembered / And cast into the highway, that some one should find it.” [↩]
Posted in: Copyright history · 3 comments

Share: Reddit Google+ LinkedIn

Demonizing Copyright

June 27, 2011 · · 111 comments

The tagline of this site is “understanding the copyright wars.” The reasons for so much debate surrounding this subject are many, but the why of the copyright wars might be boiled down like this:

The onslaught of the new technology, combined with the introduction into the international copyright system of countries with different needs and with conflicting economic and political concepts, leaves the future of copyright very much in question.

More interesting, though, is the level of rancor surrounding the debates about that future:

Like any other law, copyright is a pragmatic response to certain felt needs of society and, like any other law, must change in scope and direction as these needs change. But changing any law is never an easy matter, and the case of copyright is made much more difficult by the religious fervor and theological arguments thrown at each other by the contending parties. The personal anger, the emotion, the presentation of viewpoints in stark black-and-white terms, are quite different in degree and character from what one might find in disputes over, say, admiralty or insurance law.

It is easy to make fun of the kind of confrontation I am talking about, where the mere mention of a word like “monopoly” or “property” will cause chairs to be pushed back from tables, faces to redden, breathing to shorten and bitter words to be exchanged.

Most interesting? These words were written in 1974, by the late Barbara Ringer. A copy of her essay, The Demonology of Copyright, is available at the Copyright Office’s website, and it is highly recommended reading.

The Engine of Free Expression

One of the themes Ringer explores is how copyright emerged at a time when democracy was replacing more repressive forms of government in the western world. It’s true that copyright law has its genesis in early printing monopolies, and the privileges granted to publishers went hand in hand with government control over what could be published. But Ringer notes that by the 18th century, a fundamental shift had occurred in England:

As a result of the bloodless revolution taking place in the English constitutional system, basic individual freedoms, notably freedom of speech and freedom of the press, were becoming established under commonlaw principles. The Statute of Anne marked the end of autocracy in English copyright and established a set of democratic principles: recognition of the individual author as the ultimate beneficiary and fountainhead of protection and a guarantee of legal protection against unauthorized use for limited times, without any elements of prior restraint of censorship by government or its agents.

This wasn’t an isolated occurrence:

It is striking that the second and third copyright statutes in the world — those of the United States of America and of France — were adopted immediately following the revolutions in those countries that overthrew autocratic government and were based on ideals of personal liberty and individual freedom. The Rights of Man in both cases certainly included the Rights of the Author, and the French word for copyright, “le droit d’auteur,” reflects this philosophical approach literally.

With this theme in mind, Ringer turns to other topics, including the sharp debates over the words used in the copyright context, like “monopoly” and “property.” Next, she takes a look at the goals of copyright, and reminds readers that these goals don’t dissipate in the face of rapid technological changes:

I believe it is society’s duty to go as far as it can possibly go in nurturing the atmosphere in which authors and other creative artists can flourish. I agree that the copyright law should encourage widespread dissemination of works of the mind. But it seems to me that, in the long pull, it is more important for a particular generation to produce a handful of great creative works than to shower its schoolchildren with unauthorized photocopies or to hold the cost of a jukebox play down to a dime, if that is what it is these days.

If you change photocopies and jukeboxes to their modern day equivalents, then the arguments alluded to here are the same ones heard today. The challenges facing creators in the digital era, it seems to me, are much the same as the challenges they faced four decades ago when Ringer wrote those words (though the scope of the challenge is larger).

Ringer concludes with a strong endorsement of ensuring the continuing vitality of creator’s rights. Though the words are nearly forty years old, the sentiment remains true:

If the copyright law is to continue to function on the side of light against darkness, good against evil, truth against newspeak, it must broaden its base and its goals. Freedom of speech and freedom of the press are meaningless unless authors are able to create independently from control by anyone, and to find a way to put their works before the public. Economic advantage and the shibboleth of “convenience” distort the copyright law into a weapon against authors. Anyone who cares about freedom and authorship must insure that, in the process of improving the efficiency of our law, we do not throw it all the way back to its repressive origins in the Middle Ages.

Posted in: Copyright history · 111 comments

Share: Reddit Google+ LinkedIn

Enemies of Monopoly of Brain-product

November 12, 2010 · · Comments Off

A Manual of Musical Copyright for the Use of Music-Publishers and Artists, and of the Legal Profession was first published in 1905, and the full text is available on Google Books. It is perhaps the first treatise written to focus specifically on the law surrounding music publishing. While published music had been around for a few centuries, it didn’t develop into a regular industry until the mid to late 19th century. By 1905, music publishing was big; hit songs sold millions of copies of sheet music.

The author, Edward Cutler, was a London attorney during the late 1800s and early 1900s and involved with drafting several British copyright bills. He was also, apparently, an accomplished musician, giving frequent organ recitals during his life.1 Along with the Manual of Musical Copyright, Cutler co-authored A Treatise on Musical and Dramatic Copyright with Eustace Smith and Fred E. Weatherly.

Manual of Musical Copyright covers British law: copyright formalities, licensing, infringement, etc. Obviously, the material wouldn’t be much help to musicians or publishers today, but it is interesting from a historical perspective.

What stands out most to me, however, is how the treatise begins. Employing strong rhetoric, Cutler addresses what he calls the “enemies of monopoly of brain-product”:

(1) There is a certain class of persons, who look upon the protection which the law throws around the offspring of a man’s brain as an unjust monopoly, an invasion of the liberty of the subject. These would-be lavish givers of other people’s property are more numerous, and in some cases more influential, than one would suppose in an enlightened age when, to use the often quoted language of Lord Chancellor Brougham, ” the schoolmaster is abroad.”2 Their policy is not dissimilar from, though fraught with far wider mischief than that of the opponents of the game-laws.3 The attacks of both assailants of the rights of property like other socialistic believers in the axiom “la propriété est le vol” 4 are suicidal, and would result in the slaughter of the bird which lays the golden eggs. Instead of getting cheap music of a good class, the abettors of the pirates will end by stopping the production of all works of genius and even of popular ones.

(2) This argument is too familiar to need development. If the allies of the notorious pirate of musical publications have minds so constituted that they cannot see the inevitable result of withdrawing protection from producers of “thoughts that burn,” no reasoning of the present writer on the old lines would convince such onesided and narrow thinkers. There is, however, another form of argument derived from the mode in which copyright sprang up; an evolution founded on the absolute necessity for intervention by the legislature to prevent a scramble for “no man’s property,” in the region of idea-creation; a necessity resembling that which gave rise to the laws giving validity to testamentary documents. If it be found necessary in the interests of society, and if it is not a vicious monopoly, to allow a man by making a will to withdraw his goods and chattels after his death from the clutches of the strongest and least scrupulous citizens, there is no impropriety in following an analogous course, and protecting what is often more precious than money, brain product.

(3) Sympathisers with the street buccaneers who carry out the principle “non vobis mellificates apes”5 and fatten upon the pastures which industrious publishers have cultivated and enriched by the sweat of their brow and the money from their purse, think that musical copyright sprung into life, the offspring of a few wealthy publishers, nursed by the advocates in Parliament of those interested wire pullers; and that it is only the apathy of an ignorant and lazy public which allows it to live. The reverse is the fact. Topsy’s mode of accounting for the existence of stupendous London, “I suppose it growed,” applies to copyright.6 It is not necessary to enlarge upon the state of society prior to the reign of Queen Anne,7 when not only the musical art was at a low ebb, but means of multiplying copies of a musical piece were in their infancy; theft was not attractive, street pirates were unknown in those halcyon days. Then men began to suspect that music, following on to the heels of literary composition, had a value, both intrinsic and pecuniary. The theft of a MS.8 musical composition containing often matter of national, nay, of European interest, was a crime, and punishable as such; and police-protection was accorded to this sort of property. Then it came to be held that even where a felonious intention or act was wanting, as in the case of an executor, borrower, or other person becoming possessed of, or obtaining access to a MS. by legal means, such person should be restrained by the court from illegally publishing the contents of such MS. or otherwise dealing with it so as to encroach upon the rights of the author; and performance in public, and under certain circumstances in private, of a piece of music or a dramatic piece not communicated to the public by the composer or author, would be subject to the same rule.

(4) The right to recover an unpublished MS. or to restrain publication or multiplication of copies of it or performance, was and is unrestricted in point of time, and remains for ever unless interrupted by some act of acquiescence by the proprietor amounting to “leave and license” to interfere with his rights or some part of them.

(5) These rights to protection for valuable property sprang up by degrees and as it were, spontaneously, and were due to no envious invention of avaricious publishers; they took root in the natural sense of justice and necessity, to avoid confusion and literary anarchy. The same deep-seated motives caused the legislature to intervene, and to crystallise the unwritten law by several Statutes, which the writer abstains from referring to in detail, as the measures in question were all repealed, and the whole copyright law relating to Great Britain was dealt with (or purported to be so) by the Act of 1842 herein referred to as “The Copyright Amendment Act.”9 This Statute was due to the unceasing labours of the large-minded and classical Serjeant Talfourd,10 and as will be seen from his published correspondence, was free from the taint of any editorial intrigue.

Footnotes

  1. Who’s Who, 1907, pt II, pg 433. [↩]
  2. See the New York Times for an explanation of this saying. [↩]
  3. According to Dr. Marjorie Bloy, “The Game Laws of 1816 limited the hunting of game to landowners: pheasant, partridge, hares and rabbits. The penalty for poaching — or even being found in possession of a net at night — was transportation for 7 years. The enclosure movement had enabled landowners to extend their parks and warrens, but had deprived villagers of common land from which to net/trap extra meat, to supplement poor diet they could afford on low wages.” [↩]
  4. “Property is theft” — Pierre-Joseph Proudhon. [↩]
  5. Roughly, “bees make honey not for themselves.” From Virgil. [↩]
  6. I believe this is a reference to the character of Topsy from the novel Uncle Tom’s Cabin and the resulting expression “it growed like Topsy.” [↩]
  7. I.e., prior to the Statute of Anne, considered the first modern copyright law. [↩]
  8. MS. = manuscript. [↩]
  9. The Copyright Act 1842 extended copyright to musical compositions in England. [↩]
  10. Thomas Noon Talfourd. [↩]
Posted in: Copyright history · Comments Off

Share: Reddit Google+ LinkedIn

Page 1 of 212