Copyright Erodes Property℠

Copyrights and patents differ from tangible property in fundamental ways. Economically speaking, copyrights and patents are not rivalrous in consumption; whereas all the world can sing the same beautiful song, for instance, only one person can swallow a cool gulp of iced tea. Legally speaking, copyrights and patents exist only thanks to the express terms of the U.S. Constitution and various statutory enactments. In contrast, we enjoy tangible property thanks to common law, customary practices, and nature itself. Even birds recognize property rights in nests. They do not, however, copyright their songs.

Those represent but some of the reasons I have argued that we should call copyright an intellectual privilege, reserving property for things that deserve the label. Another, related reason: Calling copyright property risks eroding that valuable service mark.

Property as a service mark, like FedEx or Hooters? Yes. Thanks to long use, property has come to represent a distinct set of legal relations, including hard and fast rules relating to exclusion, use, alienation, and so forth. Copyright embodies those characteristics imperfectly, if at all. To call it intellectual property risks confusing consumers of legal services—citizens, attorneys, academics, judges, and lawmakers—about the nature of copyright. Worse yet, it confuses them about the nature of property. The property service mark suffers not merely dilution from copyright's infringing use, but tarnishment, too.

As proof of how copyright threatens to erode property, consider Ben Depooter, Fair Trespass, 111 Col. L. Rev. 1090 (2011). From the abstract:

Trespass law is commonly presented as a relatively straightforward doctrine that protects landowners against intrusions by opportunistic trespassers. . . . This Essay . . . develops a new doctrinal framework for determining the limits of a property owner’s right to exclude. Adopting the doctrine of fair use from copyright law, the Essay introduces the concept of “fair trespass” to property law doctrine. When deciding trespass disputes, courts should evaluate the following factors: (1) the nature and character of the trespass; (2) the nature of the protected property; (3) the amount and substantiality of the trespass; and (4) the impact of the trespass on the owner’s property interest. . . . [T]his novel doctrine more carefully weighs the interests of society in access against the interests of property owners in exclusion.

Although I do not agree with every aspect of Prof. Depooter’s doctrinal analysis, he correctly observes that trespass law includes some fuzzy bits. Nor do I complain about his overall form of argument. It is not a tack I would take, but it was near-inevitable that some legal scholar would eventually argue back from copyright to claim that real property, too, should fall prey to a multi-factor, fact-intensive “fair use” defense. I merely take this opportunity to remind fellow friends of liberty that they can expect more of the same—and more erosion of the property service mark—if they fail to recognize copyrights and patents as no more than intellectual privileges.

[Crossposted at Agoraphilia, Technology Liberation Front, and Intellectual Privilege.]

The Specter of Copyism v. Blockheaded Authors

Just posted on SSRN: The Specter of Copyism v. Blockheaded Authors: How User-Generated Content Affects Copyright Policy. Here's the abstract:

Technological advances, because they have radically lowered the costs of creating and distributing expressive works, have shaken the foundations of copyright policy. Once, those who held copyrights in sound recordings, movies, television shows, magazines, and the like could safely assume that the public would do little more than passively consume. Now, though, the masses have seized (peacefully acquired, really) the means of reproducing copyright works, making infringement cheap, easy, and, notwithstanding the law's dictates, widespread. Copyright holders thus understandably fear that their customers have begun to treat expressive works like common property, free for all to use. That, the specter of copyism, does risk upsetting copyright policy, leading to a market failure in the production of expressive works. Even as we recognize that threat, however, we should also appreciate that technological advances have greatly reduced the costs of creating and distributing new works of authorship. Thanks to that deflation, we can increasingly count on authors who care little about the lucre of copyright - blockheads, as Samuel Johnson called them - to supply us with original expressive works. This paper describes the economic push and pull between distributed infringement and distributed authorship - between copyism and blockhead-created content, we might say - and how copyright policy should mediate those forces.

This free-standing article comes largely from various parts of chapters 1, 8, and 9 of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. As always, I welcome your comments.

[Posted at Intellectual Privilege, Agoraphilia, and The Technology Liberation Front.]

In the News: Guy Likes to Surf

To my surprise, the O.C. Register ran a twee report about how I used surfing to motivate my sabbatical book project. The reporter, Marla Jo Fisher, evidently read my blog post on the topic, and figured that it would make a cute "slice of life" sort of story. She and the photographer, Leonard Ortiz, did a fine job of not making me look like any more of a fool than I am—no mean feat, that. Nice folks, too.

[Crossposted to Agoraphilia.]

Folding Heart Card, Uncopyrighted

[NB: Updated; please see concluding paragraphs.]

As a matter of policy, we should favor love. It generates many private and public benefits. Individuals or communities short of love suffer terribly. Those rich in it thrive.

Please allow me to offer one small step towards encouraging love: An uncopyrighted (and thus public domain) card. Folding it for your love will prove your devotion, as the folds present a nice little origami challenge. A personalized card beats a store-bought one by a mile, too. Add messages inside and out, lock the heart up, hand it over, and brace yourself for some lovin'.



Here are some details:





If I might geek out for a moment, I'd like to offer some pertinent observations about copyright law. That I've uncopyrighted Folding Heart Card by no means guarantees that those who copy it will escape all liability. I have placed in the public domain only mywork of authorship—the image and the folds portrayed above. Another might claim copyright privileges over the same work, or some part of it. I claim Folding Heart Card as an original, but I must also admit that, by definition, unconscious copying remains a risk. So while I encourage you to copy the work as you see fit, and thereby honor both my love and your own, you must assume full responsibility for the outcome. I think, on net, you'll like the results.

Update: On his eponymous, conspiratorial blog, Eugene Volokh kindly cited my Valentine's Day offering. That prompted a question about the copyrightability of origami creations--and another excuse for me to geek out.

Origami works probably merit copyright protection under U.S. law as works of sculpture, though the constraints imposed by paper-folding (there are only so many ways to fold a heart, for instance) might support a merger defense to any such claim. The sequence of folds required to make a particular origami work, in contrast, would probably fall outside the scope of copyright, instead qualifying as a "procedure, process, system, [or] method of operation," per § 102(b). A patent would better suit that subject matter. An illustration of a folding sequence, such as my photos showing how to make the Folding Heart Card, would of course enjoy copyright protection.

As long as I'm updating, I'll also caution those of you who create the Folding Heart Card that its front does not open. The back does open up, however, once you unlatch the paper locks that hold it closed. If you prefer a version that will not tempt the card's recipient to try to open the front, you can, by way of a minor variation on the technique I illustrated, close its face with a kimono fold. I leave the details of that method, which I rejected as unappealingly unsymmetrical, as an exercise for students of origami.


[Crossposted to Agoraphilia and The Technology Liberation Front.]

The Packet-Switched Society

Two sharply contrasting views dominate the debate over copyright policy. On the one hand—the left one, we might say—copyrights represent mere policy tools, no better in principle than any other legal mechanism and, indeed, more modern, rationally planned, and democratically chosen that anything the common law can offer. On the other hand—the right hand, we might say—copyrights represent property rights no less than real estate or moveable goods do. On that view, copyrights deserve strict enforcement and our solemn respect.

[My draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good, presents] copyright policy on a third hand. So grasped, copyright represents nothing better than a clumsy attempt to correct an alleged market failure. Common law rights, implemented by technological advances, social networks, and growing wealth, increasingly suffice to stimulate the production of original expressive works. Increasingly, we find that we do not need copyright. To that extent, it does us little good and much harm to remain imprisoned within the confines of the Copyright Act. Even if they wanted to, federal lawmakers could not put copyright policy into a delicate balance; they face powerful incentives to not even try. Better we should cast aside copyright's statutory privileges and rely on the common law to promote the public good.

Many people—well-informed, intelligent, and sincere people—will doubtless disagree with this third view of copyright policy. Many will have good reasons for doing so, too. Some, though, will have perhaps been mislead by their reliance on an older, less flexible understanding of copyright—what we might call a circuit-switched model. In fact, however, we can best understand copyright policy, and much else, by following the example set by packet-switched networks.

As courts and commentators traditionally describe copyright, it arises through the collective deliberation of central authorities who, after a delicate balancing of competing interests and in the name of the general welfare, create statutory rights to expressive works. In that model, lawmakers let copyright holders borrow the State's power to violate natural and common law rights, empowering copyright holders to control others' pens, presses, and voices. That approach strongly recalls the policy model applied to earthbound, closed, circuit-switched networks.

Those who build circuit-switched networks invoke the State's power of eminent domain to justify violating common law rights, laying wires that cut across private property. Regulators supervise the monopoly that results, imposing common carrier obligations, cross-subsidizing universal service, and controlling rates. So, too, goes the circuit-switched model of copyright: The Act empowers copyright holders to violate the common law, granting them statutory privileges that cut across customary rights, while lawmakers carefully calibrate the ebb and flow of expressions to maximize the general welfare.

This book takes a fundamentally different approach to public policy, an approach inspired by packet-switched networks like the market, person-to-person communications, and the internet. In such a network, message-bearing packets flow from point to point over any of many different paths, routed not according to the dictates of a central command but rather by generally accepted protocols. So long as a packet follows a few, simple rules, it can take any route it likes. Packet switching has many virtues; it often proves more flexible, robust, and scalable than circuit switching, for instance. It supports layer upon layer of complexity, too, encouraging a wealth of unplanned order. Most importantly for present purposes, packet switched networks offer us an apt model for understanding that vast web of consent-rich relations we call the liberal society.

Each of us a liberal society pursues a variety of goals, some shared and some unique. Each of us follows his, her, or (in the case legal persons) its own route through a network of voluntary ties. No central authority directs how we pursue our goals. Nor could it, given the complexity of the system and the distribution of information. Our packet-switched society instead relies on a few simple rules--based in natural rights and implemented through the common law--to define a protocol universally just and locally fair. Our society spontaneously generates peace and prosperity, the fruit of conscious action but not of conscious design.

As wire-bound parts of the internet demonstrate, a packet-switched network sometimes runs on a circuit-switched infrastructure. Similarly, liberal societies typically rely on some measure of State intervention to help patch the gaps where private means fail. But in neither case should we confuse an old fix for a necessary feature. Thanks to open-access and packet-switched radio communications, the Internet can—and probably should—escape from those circuit-switched bottlenecks so susceptible to disruption and censorship.

Similarly, common law now stands ready to finally cure the market failure that alone justifies copyright's statutory privileges. If thus rendered superfluous, the Copyright Act will turn from a necessary evil into simply an evil. We should not let that political kludge trap us within copyright's confines. Let us instead seek the common good in the common law.


[NB: The above text comes from the conclusion of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. You can find a PDF of the entire chapter, including footnotes, here. I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

Copyrights as Positive Natural Rights

[I earlier explained why copyrights do not qualify as natural rights under Locke's theory of property. Here, I explain why the same holds true under Barnett's positivist account of natural rights. Both passages come from my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good.]

Randy E. Barnett justifies natural rights conditionally, basing them on our appreciation of certain social goods. He emphasizes that "if we want a society in which persons can survive and pursue happiness, peace and prosperity, then we should respect the liberal conception of justice—as defined by natural rights—and the rule of law." Not everyone values freedom, harmony, and wealth, of course. Most of us do, though, and together we easily number enough to enjoy the comforts and pleasures of human society.

We live together amicably because we recognize and respect certain natural rights. Which ones? Barnett names private property—including our property rights in our bodies—and freedom of contract. Since property protects both the right to it and the right against trespass, it corresponds to common law's property and tort rules. Freedom of contract, which includes the right to contract and to not contract, corresponds to common law's contract rules. Barnett's description of natural rights thus matches the protections of persons, property, and promises at the heart of common law.

Barnett expressly includes "physical resources" in his description of property rights. "Such property rights are 'natural' insofar as, given the nature of human begins and the world in which they live, they are essential for persons living in society with others to pursue happiness, peace, and prosperity." Do copyright rights qualify as natural on that description? Probably not.

Barnett offers a positivist account of natural rights, an approach earlier developed by F.A. Hayek. Social values evolve and develop to enable human flourishing, Hayek explained. "[G]roups which happen to have adopted rules conducive to a more effective order of actions will tend to prevail over other groups with a less effective order," he said. That hardly means that groups with especially efficient rules conquer and crush their less developed neighbors. "It is more likely that the success of the group will attract members of others which then become incorporated in the first."

That competition between social orders spontaneously generated natural rights long before states arose. "Long before man had developed language to the point where it enabled him to issue general commands, and individual would be accepted as a member of a group only so long as he conformed to its rules," Hayek explained. David Hume expressed the same point with characteristic grace:

But tho' it be possible for men to maintain a small uncultivated society without government, `tis impossible they shou'd maintain a society of any kind without justice, and the observance of those three fundamental laws concerning the stability of possession, its translation by consent, and the performance of promises. These are, therefore, antecedent to government, and are suppos'd to impose an obligation before the duty of allegiance to civil magistrates has once been thought of.

Our rights to persons, property, and promises qualify as "natural" because they have evolved to enable human social life. They long predate the State. Copyright, in contrast, arose only relatively recently, in complete reliance on a non-customary, exceptional, statutory privilege.


[NB: The above text comes from chapter 2, § C.2 of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. You can find a PDF of the entire chapter, including footnotes, here. I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

How Surfing Saved My Sabbatical

What motivates tenured law professors to write? I suppose that some do so as second nature, as automatically as lesser scholars breath. Perhaps other law profs write out of a heroic sense of duty, confident that what they publish will change the world for the better. It takes more than that to get me to write, alas. It seems that my inner 14-year-old, still going strong despite decades of scolding, won't settle down and let me write unless I resort to embarrassingly juvenile carrots and sticks.

Sometimes I bribe myself with a new toy for getting my writing done. Last spring, for instance, I gave myself a a new Breedlove guitar for meeting the deadline on an article I'd promised to the Utah Law Review. That deal worked out nicely (or, as my inner punk would say, "Saaaaaweet!").

My auto-goading strategy faced a more difficult challenge this fall, however, when I prepared to knuckle down and write a book during my one-semester sabbatical. I realized early on that I could not afford (read, "am too cheap to buy") all the cool stuff that it would take to stimulate the requisite labor. And, anyhow, a guy can use only so many surfboards, skateboards, and snowboards (though a great many more than you might at first think). How, then, would I motivate myself?

As so often happens in life, surfing held the answer.

On most work days during my sabbatical, I would head first thing in the morning to my "beach office": a rugged picnic table, hidden in a grove of laurel sumac, on a bluff above one of my favorite breaks. After briefly salivating over the waves, I'd crack open my laptop and get to work on a pre-assigned task. Some days I'd aim to write a new chapter section, for instance, while on others I might have to create new set of illustrations. It helped that my beach office lacks internet access; email and blogs could thus offer no distractions. The real motivation came in this, though: I could not go surfing unless and until I finished the day's assignment.

As my family can attest, I stuck to my bargain. Several days I dragged in late, long-faced and bone-dry because I had not met my daily goal. Things got especially rough after my computer's hard-drive crashed, forcing me to recreate data and write some passages in long-hand. Happily, though, I got to cap off many days at my beach office with some well-earned waves.

It may sound like a ridiculous arrangement to you, but the results satisfied me. I got my book, Intellectual Privilege: Copyright, Common Law, and the Common Good, into late draft. (It remains only for me to re-read the whole thing, polish it as necessary, and write the conclusion). That effort has already spun off one paper; a couple more will follow. Perhaps surfing did not help to motivate the other stuff I did during my sabbatical—presenting papers and attending conferences—but it didn't seem to hurt. As a nice side-effect, my surfing improved a lot, too; towards the end of my sabbatical I managed a few fin-forward take-offs and spins on my 9'0" longboard (sort of like Sensei Nuuhiwa's example, but without the iffy neighbor and with a lot more falling down), and I've started feeling pretty comfortable on my newer board, a 6'10" French "Soul Fish."

In other ways, granted, my sabbatical fell short of my goals. I had hoped to drywall the garage and record a few songs, but did next to nothing on either project. The oil painting that I planned—something like this earlier one—remains for now only roughed-in. I console myself that I at least managed to install a new irrigation line and several area drains. And, anyhow, who really cares if that work—productive play, really—remains undone? The good folks at Chapman who funded my sabbatical didn't ask me to rebuild my house, after all. With luck, though, they will like what I did get done, and continue to support my scholarship. The Channel Islands 7' M13 I put on special order should come sometime late this coming spring, you see, and I expect it will take a lot of study to master it.

[Crossposted to Agoraphilia and MoneyLaw.]