Copyhype

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.